Pirre (Re), 2025 ONTLAB 378

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253

Toronto, Ontario M4R 1B9

Date:

2025-12-16

25 141864 S45 15 TLAB

Pirre (Re), 2025 ONTLAB 378

Issuance Date:

December 16, 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:

198 DONLEA DR

COA File No.:

24 221539 NNY 15 MV (A0539/24NY)

TLAB Case File No.:

25 141864 S45 15 TLAB

Hearing Date(s):

October 24, 2025

Deadline Date for Closing Submissions/Undertakings:

Decision Delivered By:

People Type

First Initial. Last Name

Representative

Appellant

Applicant

INTRODUCTION AND CONTEXT

1This Appeal arises from the Committee of Adjustment’s (COA) refusal of an application for variances to legalize and maintain a constructed two-tier deck at 198 Donlea Dr (subject property).

2The subject property is located in the Leaside neighbourhood of the former Borough of East York.

3The property is designated Neighbourhoods and zoned RD (f9.0; a275; d0.45) under Zoning By-law 569-2013.

REQUESTED VARIANCE(S) TO THE ZONING BY-LAWS:

Chapter 10.5.40.50(4)(C), By-law 569-2013

Platforms¹ attached to or within 0.3m of a rear main wall, located at or below the first storey, may be no higher than 1.2m above the ground at any point below the platform except where the platform is attached to, or within 0.3m of a rear main wall where the platform floor, located 2.5m or less from the rear main wall, may be no higher than the level of the floor from which it gains access.

The deck is 1.25m high and projects 4.88m from the rear wall.

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

The required minimum side yard setback is 0.9m.

The west side yard setback is 0.08m.

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

A minimum of 50% of the rear yard must be for soft landscaping.

The proposed rear yard landscaping area is 31.9%.

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

The permitted maximum lot coverage is 35% of the lot area.

The lot coverage is 49.09%.

4Four days prior to the set Hearing date of this matter, the TLAB received correspondence from the Appellant’s legal representative, Ms. Koev, advising that the Appellant was seeking amendments (set out in a simultaneously filed addendum to the Expert Witness Statement) to the previously requested variances.

5The email correspondence sought direction (prior to the Hearing) from the TLAB as to whether further notice is required under s. 45(18.1.1) of the Planning Act. Ms. Koev requested that if the TLAB determined that notice is required, that the Hearing be adjourned to allow sufficient time for notice to be provided.

6For medical reasons, Ms. Koev was not in attendance at the Hearing. Her colleague, Mr Germain, represented the owners.

7The issue of notice was addressed at the commencement of the Hearing on October 24, 2025. I advised Mr. Germain that a determination of whether notice is required is not appropriately decided on the basis of an email without substantiating evidence or affidavits. The waiving of notice is an authority delegated to the TLAB under the Act and requires a formal Hearing process. The request for consideration of notice in advance of the Hearing of evidence on the variances, or a request for adjournment, should, at the least, have been filed as a Notice of Motion.

8After some discussion, Mr. Germain agreed to proceed with the Hearing and that my decision on the issue of notice would be addressed as a part of my Decision on this matter.

9There were no other Parties or Participants in this matter besides the owners.

10I advised those present at the Hearing that, in accordance with Council direction, I had attended at the site and the surrounding area and that I had reviewed the pre-filed materials in preparation for the hearing of their evidence.

THE LEGISLATIVE AND POLICY FRAMEWORK

11Provincial 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.

12Provincial 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.

13Variance – S. 45(1)

In considering the applications for variances from the Zoning By-laws, the TLAB Panel must be satisfied that the applications meet all of the four tests under s. 45(1) of the Act. The tests are whether the variances:

maintain the general intent and purpose of the Official Plan;
maintain the general intent and purpose of the Zoning By-laws;
are desirable for the appropriate development or use of the land; and
are minor.

SUMMARY OF EVIDENCE

EXPERT WITNESS: CHAN

14Mr. Chan was qualified as an expert in land use planning and provided evidence in support of the variances.

15He described the history of the rear deck. It was constructed without authorization (building permits) in 2023. An Order to Comply was issued by the City. The owners filed an application for four variances to bring the deck into compliance that was refused by the COA.

16He described the development as a two-tiered deck, 5cm above the height that triggers a variance and topped by a “pergola”/”canopy”. The lower portion of the deck does not require a variance because of its height, but does contribute to the need for a coverage variance and a soft landscaping variance. A side yard variance is required for the full length of the deck on the west side.

17Mr. Chan’s addendum to his Witness Statement (marked Exhibit 3) states that he spoke to the Zoning Examiner on Sept 24, 2025, and concluded that all four variances that were before the COA must be revised.

18He advised that the calculations of the revised variances are all based on the as-built survey, which formed part of the record that was before COA, and the changes do not flow from any physical changes to the structure. He advised that the “changes to the requested variances are proposed to ensure that the permission sought is better-reflective of the existing structure so that there are no issues with the issuance of a building permit down the road.”

19An updated site plan was not provided as part of the addendum to Mr. Chan’s Expert Witness Statement.

20The difference between the previously submitted and “corrected” variances are set out as follows:

1). Chapter 10.5.40.50(4)(C), By-law 569-2013

The rear deck is permitted to project 2.5m from the rear wall, whereas the deck is proposed to project 4.88m (originally 4.8m) from the rear wall. (8cm)

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

The permitted maximum lot coverage is 35% of the lot area, where the proposed lot coverage is 49.09% (originally 48.75%) of the lot area. (0.34%)

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

A minimum of 50% of the rear yard must be for soft landscaping, whereas the proposed rear yard landscaping area is 31.91% (originally 33.62%). (1.7%)

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

The required minimum side yard setback is 0.9m, whereas the proposed setback is 0.08m (originally 0.29m). (21cm)

21Mr. Chan identified a geographic neighbourhood and an immediate context in the text of his Expert Witness Statement. The diagrams to support his analysis referenced in the text are, however, incomplete or do not show the purported information.

For example:

Tab 5a shows no delineation or annotation to identify the geographic area, only an aerial photo base. Tab 5c (Immediate Context) similarly shows a plain aerial photo without delineation or annotation and also without the subject property, street names or addresses noted.
Paragraph 2.8 of the Expert Witness Statement (Exhibit 2) states that the aerial image from 2024 at Tab 5d of the Appellant’s Disclosure (Exhibit 1) shows that thirteen properties on the north side of the Immediate Context have rear decks. The photo does not capture a full block (an immediate context) and it is not apparent that there are even 13 properties captured. Some of the properties shown do not appear to have rear decks.
The paragraph numbering restarts at 1 after paragraph 6, making it difficult to navigate the document.

22Mr. Chan discussed the staff report to the COA, in which staff cited Official Plan Policy 4.1.5 that requires that development respect and reinforce the existing physical character of the neighbourhood “including prevailing massing, scale, density and landscaped open space”. In his opinion, only criterion g) in the policy, referring to prevailing patterns of rear and side yard setbacks and landscaped open space, is relevant (not the massing and scale criterion c) that staff referenced).

23He identified that the deck is 5cm above the height that is permitted for a platform attached to a rear wall and that if the height was reduced by that amount, the variance for the 4.88m projection of the higher part of the deck would not be required.

24Mr. Chan discussed the intent and purpose of the Zoning By-law with respect to lot coverage and soft landscaping, asserting that there is no increased built-form, massing or scale produced by the deck and that the function of soft landscaping to manage stormwater runoff and groundwater absorption is not impacted.

WITNESS: PIRIE

25Mr. Pirie is an owner of the property. He testified that he had been present at discussions with some of the neighbours before the application was decided at the COA.

26He confirmed that the deck had already been built and that he and his agent attempted to consult anyone who had a line of sight to the deck and the pergola that has been constructed over the deck. He confirmed that some of the neighbours came to look at what had been built.

27In response to my question, he affirmed that the “arithmetic has changed, but they are the same plans”.

ISSUES AND ANALYSIS

28I accept Mr. Chan’s evidence that the proposal is consistent with the 2024 Provincial Policy Statement.

AS BUILT

29I shall briefly address the fact that the deck structure has been built without authorization and without building permits. My duty is to consider the requested variances on their merits, and to consider the evidence as if the construction was not in existence.

30The only legal basis for my decision in these proceedings are the four statutory tests for approval of variances set out in the Planning Act – do the variances maintain the general intent and purpose of the Official Plan and Zoning By-law, are they desirable for the appropriate development or use of the land and are they minor?

31The obligation is upon the proponent of the application to demonstrate that the tests are met; there is no right to a variance.

AMENDMENT TO THE PLANS/ NOTICE

32Mr. Chan’s Expert Witness Statement advised that the COA Decision Notice contains the list of variances that were identified by the zoning examiner. He noted in his testimony that the revised variances are all based on the as-built survey, which he also noted formed part of the record before the COA.

33In his testimony, Mr. Chan advised me that the survey was done after the plans were completed and after the deck was constructed.

34Mr. Pirie testified that “they are the same plans”, “just the arithmetic has changed”.

35In reviewing the submitted documents it is clear that the deck was completed prior to the preparation of a site plan or a survey. The site plan, a key part of the COA requirements, was date stamped April 1, 2024.² The survey was date stamped January 6, 2025.

36It is also clear from the documents that the site plan submitted for zoning review does not accurately reflect the as-built condition certified in the survey. Many of the addendum corrections to the variances are necessitated by the discrepancy between the submitted site plan and the actual dimensions of the built deck.

37While I accept that the survey was included in the package of materials submitted to the COA, it is the site plan that is the foundation of the request for variances, and it is this that was reviewed by the zoning examiner. All of the deliberations of the COA and, importantly, the information upon which notice was based, are on the basis of this incorrectly drawn site plan. (See next page).

38One of the dimensions that could be a particular cause for concern in the matter of notice is the measurement of the distance between the deck and the western lot line, (the magnitude of the side yard setback variance). The deck, in actuality, does not extend straight back from the rear wall, but angles towards the western lot line. At the furthest extent of the deck, the separation from the adjacent property is 8cm, not the 29cm that was stated in the notice.

39In the process of correcting the requested variances, the extent of each has increased by centimeters, or a small percentage in the instance of the coverage and minimum soft landscaping variance.

Figure 1: Site Plan prepared for Zoning Review. EX 1, Tab 2g

Figure 2: Survey. EX 1, Tab 2b

DOES THE APPLICATION MEET THE GENERAL INTENT AND PURPOSE OF THE OFFICIAL PLAN?

40Mr. Chan provided evidence and testimony about relevant Official Plan policies.

41He devoted attention to the requirements of OP Policy 4.1.5. Mr. Chan discussed his disagreement with the City staff report that had been submitted to the COA. In his opinion, only one of the criteria is applicable to the application for variances, not the two that City staff had referenced.

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

4.1.5 Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:

a) patterns of streets, blocks and lanes, parks and public building sites;

b) prevailing size and configuration of lots;

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

d) prevailing building type(s);

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

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

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

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

i) conservation of heritage buildings, structures and landscapes.

43In their staff report, City staff made reference to OP Policy 4.1.5c) as well as 4.1.5g). In Mr. Chan’s opinion, only g) is relevant to this application.

OP Policy 4.1.5 c) prevailing heights, massing, scale, density and dwelling type of nearby residential properties

44It is Mr. Chan’s opinion that the aspects of massing and scale are not relevant to this application as “the prevailing massing is respected” and there is no alteration to the massing of the existing building. Further, he asserted that “the scale criterion is not relevant, as there is no alteration to the size or massing of the existing building”.

45In response to a question from me, Mr. Chan confirmed that his opinion was that the characteristics in criterion c) are to be applied to the building, i.e., the existing house, and are not relevant to the deck structure.

46I do not agree with Mr. Chan that the Official Plan direction with respect to massing and scale is confined to buildings only. The size and scale of the deck are the central issue for this hearing and are what has driven the need for the variances in the first place.

47The Official Plan directs development, not just buildings. Regulated structures such as decks, platforms and canopies are components of development and even if the application is for a deck only, they are similarly subject to the criterion that directs that development respect and reinforce the physical character of the neighbourhood.³

Massing

48With respect to massing, Mr. Chan had asserted that no variance is required for the “pergola”, or “canopy” that covers the higher portion of the deck. In his Expert Witness Statement, Mr, Chan said that “(t)he pergola does not contribute to increased massing and scale, as it is compliant with the zoning by-law regulations for canopy covers over platforms”.

49At the hearing, he clarified in response to my question, that the canopy is permitted only if the deck is permitted, either as of right or through a variance. It was Mr. Chan’s advice that approval of the requested variance to extend the deck would confer permission for the canopy to project 4.88m as well.

50There were no revised plans or elevations submitted to the TLAB, but the submissions to the COA and the survey were included in the Appellant’s Disclosure document. I can estimate that the area of the canopy to be in the order of 38m² (409 sq ft).

51In his Expert Witness Statement, Mr. Chan opined that “there are no setback variances required for the pergola over the rear platform, and therefore, no impacts to consider”. I disagree. The canopy is very much associated with the specific variance requested for the deck projection and consideration of its contribution to the massing of the combined building and structures is within the intent of OP Policy 4.1.5 c).

Figure 3: EX 1. Appellant's Document Disclosure, Tab 5f. Photograph from the rear of the lot.

52A canopy of this size and scale, together with the posts and screened sides, contributes to the massing of the combined structures of house, deck and canopy. I find that the resulting massing is a valid consideration in this case.

53The general intent and purpose of the Official Plan requirement with respect to massing is to prevent an overbearing presence on a public street or upon nearby neighbours from a proposed development.

54In this case, since the deck structure and pergola are located in the rear yard of the subject property, exposure to the structure from the public realm is limited.

55Of all the abutting properties, the neighbours to the rear of the property would have the fullest view of the deck and pergola, but also the greatest distance from it. As Mr. Chan noted, the elevated portion of the deck is 12.5m from the rear lot line.

56I note that the residents of the two properties abutting the rear lot line of the subject property signed a petition in support of the variances.

57The perspective from the properties to either side of the subject property are more limited, but the distance between them is much shorter. An expanded raised deck with a covering structure over 4.2m high could negatively impose on the adjacent decks and yards. The potential impact of the scale of the canopy structure is exacerbated on the west side where the side yard setback reduces to approximately 0.13m at the northwest corner of the raised part of the deck.

58I note that the neighbour to the east signed a letter of support for the proposal. I understand from Mr. Chan that the neighbours to the west opposed the variances at the COA. However, since they were not in attendance at the TLAB Hearing and did not participate in the proceedings, I am not able to take their opinions into account.

59There are features of the pergola structure that mitigate the massing. It is screened on either side, but only partway up, so that the upper sections of the pergola are open. The privacy screening on either side of the raised deck mitigates against overlook.

Scale

60The scale of the deck, i.e. the total area of the deck in relation to the area of the year yard, is the crux of the issue with respect to the variances for coverage and soft landscaping. Given that this concern is one of surface coverage rather than profile, it will be considered in relation to OP Policy 4.1.5 g) re prevailing patterns of side yard setbacks and landscaped open spaces.

OP Policy 4.1.5 g) prevailing patterns of rear and side yard setbacks and landscaped open space

Side Yard Setback

61In his addendum to his Expert Witness Statement (Exhibit 3), Mr. Chan opined that the existing 0.08m west side yard setback for the rear platform is consistent with the existing side yard setbacks for platforms in the Immediate Context and for rear decks in the vicinity of the site. He asserted that rear decks that are constructed in close proximity to, if not abutting, a side lot line are a common characteristic of properties in the area. In his opinion, the revised west side yard setback variance continues to respect and reinforce that particular physical character.

62While I respect Mr. Chan’s credentials and opinion as a professional land use planner, opinion with out substantiation does not carry the weight of evidence. However, I acknowledge the challenge of obtaining precise information about the prevailing physical character of rear yards in the neighbourhood since they are on private property and generally out of public sight. I acknowledge that Mr. Chan has utilized City of Toronto aerial photographs as the best available representation of conditions in rear yards.

63Mr. Chan has provided aerial photographs in Tab 5, but these are unfortunately unlabelled, and thus it is difficult to identify which streets and addresses are represented.

64The first aerial photograph in Tab 5d shows what I believe to be⁴ the subject property and the two abutting neighbours, each of which have a visible setback from their west side fences, which contrasts with the absence of a similar visible gap on the subject property.

65The aerial photographs that follow in Exhibit 1 show what I presume to be neighbouring streets and properties, a few of which exhibit rear yard decks/ structures that seem to be located right up against the western side fences. However, without an understanding of which properties are captured in the photographs and how many properties in the study area are represented, I cannot conclude that properties with what Mr. Chan refers to as a “negligible” side yard setback are prevailing in the immediate context or neighbourhood.

66My examination of the COA decision matrix included in Exhibit 1, Tab 5i, shows that the smallest side yard setback permitted on Donlea Dr to be 30cm. Looking at all of the examples in the table of side yard setbacks approved, only one or two are close to the 0.08cm that is requested in this case. Most of those approvals are identified as proposals for building additions, or new house applications, and thus it is not possible to ascertain if any of those setback variances were required for deck components of the overall applications.

67The site plan that was submitted to the COA showed the deck setback from the western lot line to be in line with the setback from the existing house (0.29m. see figure 1 and figure 2). A setback variance for the deck that respected that same setback could have been considered to be within the range of a setback that respects the existing physical character. From the evidence submitted, a setback of 0.08cm would seem to be an outlier in the neighbourhood.

68Mr. Chan emphasized that the existing deck is similar to the deck that was replaced in 2023. Photographs of the previous deck (prior to 2023), shown in Exhibit 1 Tab 5e, show the old deck butting right up against the fence between the subject property and the neighbour to the west. Without approved variances, however, the old deck at similar dimensions would have been subject to the same enforcement that has precipitated the variance requirements for the existing deck, and would have had to be evaluated against the same Official Plan policy requirements.

69I find that the evidence submitted is not sufficient for me to be satisfied that that the prevailing pattern of side yard setbacks includes, in significant numbers, side yard setbacks at the minimal (8cm) separation that is proposed.

Landscaped Open Space

70Mr. Chan characterized the neighbouring properties as containing landscaped rear yards containing decks but did not directly address the prevailing pattern of landscaped open space in his evidence.

71In his testimony at the Hearing, he advised that the policy does not differentiate between soft and hard landscaping and therefore it was his opinion that the policy is maintained. I cannot agree with this approach. As Mr. Chan identified in his Expert Witness Statement, decks are considered development and defined as such in the Planning Act. Therefore, deck area is not, even at the policy level, understood as landscaped open space, hard or soft.

72What is meant by the prevailing pattern of landscaped open space is the general proportion of landscaped space versus built structures (in rear yards in this case) that is the most frequently occurring in the neighbourhood.

73Mr. Chan gave evidence that rear yards in the neighbourhood contain landscape and decks, but has not given a comparative analysis of the proportion/ ratio of each component (landscape and structures), which is the objective of OP Policy 4.1.5 g). The policy seeks that the development respect the prevailing pattern in the neighbourhood. It is not sufficient to simply characterize the rear yards as containing landscaping and decks.

Findings Official Plan

74The fundamental purpose of the land use planning framework is to protect the public interest in the process of land development. The development criteria listed in OP Policy 4.1.5 are intended to ensure that the existing physical character of each geographic neighbourhood is respected. The criteria emphasize perception and experience of neighbourhood character and neighbourhood patterns in order to maintain harmony and compatibility of development.

75The nature of this planning application, being a deck structure in a backyard, has limited exposure to the public realm. The policy requirements emphasizing broader neighbourhood patterns are less engaged in this context than development that is in view from the street, for example.

76This somewhat secluded nature of the backyards of most properties makes it difficult to obtain reasonable information about the prevailing physical character of rear yards in the neighbourhood since they are on private property and generally out of public sight. While consistency of patterns of development in rear yards may be of lesser interest to the general public than more visible development, the neighbours in the immediate vicinity and abutting the subject property are directly impacted by this kind of development.

77In addition, the policy objective of maintaining a sufficiency and consistency of provision of landscaped open space is one that is relevant to a wider area than just the subject property and abutting properties. There is a community interest in all properties in the immediate context maintaining a sufficiency of landscaped open space as the cumulative effects of a reduction in landscaped space has an effect on natural processes such as water runoff and heat retention that flow beyond property boundaries.

78I find that the massing of the structure (upper deck and pergola) is mitigated by the distance from the neighbours to the rear and the openness of the upper sections to either side. The reduced side yard setback to the west, however, exacerbates the potential impact of the raised and extended deck in combination with the similarly expansive pergola on the west side neighbour.

79I am mindful that the scale of the upper part of the deck would be permitted as of right, with the exception of the encroachment into the side yard setback, if it were 5cm lower. On balance, I find that the specific variance requesting a projection of the deck beyond the 2.5m maximum in the Zoning By-law to 4.88m can respect the massing in the neighbourhood.

80With respect to side yard setbacks, I find that the evidence submitted is not sufficient for me to be satisfied that that the prevailing pattern of side yard setbacks includes, in significant numbers, side yard setbacks at the minimal (8cm) separation that is proposed on the west side.

81Whether articulated as the scale of the deck and pergola in relation to the landscaped open space, or the amount of landscaped open space in relation to the deck, the analysis comes to the same point: is the balance between landscaped open space and deck-related structures in this application similar to the prevailing pattern in the neighbourhood? I have not been provided evidence to conclude that the prevailing pattern of landscaped open space has been respected.

82For the reasons set out above, I am not satisfied that the proposal as a whole respects and reinforces the general intent and purpose of the Official Plan. I am satisfied that the general intent and purpose of the Official Plan is met in the instance of the variance for the deck projection from the main wall, but I conclude that I have not been given sufficient basis to conclude that the remaining variances maintain the general intent and purpose of the Official Plan.

DOES THE APPLICATION MEET THE GENERAL INTENT AND PURPOSE OF THE ZONING BY-LAW?

83The Toronto Official Plan sets out the land use planning vision for the City of Toronto. The Zoning By-law implements the policies of the Official Plan, setting numerical site standards, setbacks from lot lines and landscaped open space and other performance standards⁵.

Variance 1: Rear Deck Projection for a deck greater than 1.2m in height

84The Zoning By-law permits a deck, which is attached to (or within 0.3m of) the rear main wall, to be a maximum of 1.2m above the ground. As an exception, such a platform may be as high as the level of the floor from which it gains access if it is within 2.5m of the rear main wall.⁶ In addition, according to Mr. Chan’s testimony, a canopy is permitted to the same extent as the deck is permitted.⁷

85Mr. Chan noted that if the deck had been constructed 5cm lower, a variance would not be needed for the projection, it would have been permitted as of right. In his opinion, the small excess in height of the raised deck over what is permitted in the zoning by-law has minimal impact.

86Mr. Chan identified the purpose of this provision in the Zoning By-law to be the prevention of impacts to privacy and overlook onto adjacent properties to the rear and sides of a platform.

87As I accept Mr. Chan’s advice with respect to the intent and purpose of this provision, I also note that the intent of the provision is that the projection of a deck should be limited if the height is raised. The premise of the provision is that a higher deck is potentially more impactful to the neighbouring property and should therefore be limited in its extent, thereby reducing the scope of the elevated vantage point.

88I accept Mr. Chan’s assertion that a small excess of 5cm in the height of the deck has a minimal impact beyond what would have been allowed as of right. However, this advice isolates the impact of the deck height from the other provisions of the By-law that are intended to work in concert, including controls on the side yard setbacks to maintain separation between properties as well as restrictions on encroachments into the rear yard setback. While the elevated height may be inconsequential, the impact of the height in combination with the substantial projection of the deck and a substantially reduced side yard setback amplifies potential impacts to privacy and overlook.

89In mitigation of potential privacy impacts to the east and west, Mr. Chan noted that the elevated portion of the deck also implements 1.8m (6ft) tall opaque wood fencing to the west side of the platform.

90I find that the 5cm increase in the height of the deck beyond the maximum permitted in the Zoning By-law to have limited impact beyond what would have been approved as of right. I therefore find that the requested variance maintains the general intent and purpose of the Zoning By-law.

Variance 2: Minimum Side Yard Setback

91Mr. Chan’s evidence contained in his Expert Witness Statement (Exhibit 2) justified the variance on the basis of his previous understanding that the deck was no closer to the lot line than 0.3m.

“ platforms that are no higher than the first storey of the building are permitted to encroach a maximum of 1.5m into a side yard setback, so long as they are no closer to a lot line than 0.30m. In this case, the rear platform encroaches into the required building setback, and is 0.39m from the side lot line (see the Site Plan at Tab 2g). Therefore, both the upper and lower tiers of the rear platform, that is no higher than the first storey, is compliant with the permitted side yard encroachments for platforms pursuant to Chapter 10.5.40.60 (1)(E) (Tab 4f)”.

92As has been documented above, the side yard setback variance is now requested to be 0.08m from the side lot line, with the northwest corner of the raised portion of the deck, I estimate from the survey, at 0.13m from the lot line. Thus, the conditions that the Zoning By-law sets (by exception) for the deck to be permissible at the same height as the first storey (that they may encroach to a maximum of 1.5m and that they must be no closer to a lot line than 0.3m) are both breached.

93The addendum to Mr. Chan’s Expert Witness Statement (Exhibit 3) addresses the Official Plan requirement that the revised west side setback respect the physical character, but does not address the intent and purpose of the Zoning By-law and how the reduced west side setback would meet this test.

94Mr. Chan did not offer an opinion on the purpose of this provision in the Zoning By-law. It is clear on the face of it that the provision seeks to maintain a separation between structures on one property and a neighbouring property. The By-law employs separation of structures (or the activities they are used for) as a way to mitigate the effects of those structures or associated activities, such as noise, water runoff or loss of privacy.

95I have not been provided sufficient evidence to be satisfied that the general intent and purpose of the side yard setback provision in the Zoning By-law have been met.

Variance 3: Rear Yard soft landscaping

96Mr. Chan stated that the purpose of the rear yard soft landscaping regulation is to “limit the impacts of impervious landscaping in order to allow increased groundwater infiltration to a property, thereby lessening the impact of surface groundwater and enhancing stormwater management to the City’s storm drainage system.”

97The environmental benefits of soft landscaping are perhaps broader than only the management of water, and in addition, the statement misses perhaps the key concern related to water in this context, that of surface flow and underground flow onto neighbouring properties.

98In Mr. Chan’s opinion, the function of soft landscaping to manage stormwater runoff and groundwater absorption is not impacted by the extent of the deck coverage as the deck is constructed to allow stormwater to flow between the deck members (sic) and continue to the “soft landscaped area that is to be maintained under the rear deck”. Further, he asserted that additional measures have been implemented for “improved drainage” such as the installation of new eavestroughs and the planting of new trees.

99It is not only the loss of open area left in the rear yard that is of concern, but also the loss of actual landscaping, ground covering plants, which operate to restrain the velocity and flow of water, aiding in the retention and absorption of water on site. With respect to Mr. Chan’s comments, gravel or soil under a deck simply does not provide this capacity.

100That there remains some piece of soft landscaping on the property to provide a sink for the runoff from the covered area is not a sufficient reassurance that the intent of the provision has been met.

101I do not accept Mr. Chan’s assertion that the function of soft landscaping to manage stormwater runoff and absorption is unimpacted by the area of deck coverage. As he stated, the purpose of the provision is to allow increased infiltration to a property. A covered deck with impervious slats cannot function in the same way, with the same infiltration rate and water flow velocities, as landscaped open space.

102I note that the photographs of the deck show a conventional deck floor and I was not advised that there was any specific adjustment of the construction to facilitate increased permeability of the deck floor. I note also that the raised portion of the deck is, in addition, covered by a pergola.

103The oblique suggestion in the evidence is that there are gaps between the boards of the deck and that means that the deck is “permeable” and therefore equivalent in function to soft landscaping. The By-law provision specifically stipulates soft landscaping. Even hard landscaping such as paving stones (with gaps between them) is not acceptable. It is a stretch for me to accept that the purpose of soft landscaping can be replaced by a deck with gaps between the boards.

104Mr. Chan’s justification hinges on the effectiveness of drainage, citing collection mechanisms such as eavestroughs and conveyance of water to the remaining soft landscaped area. What happens to that amount of water once it is conveyed to the reduced remaining grassed area in the backyard has not been explained. The saturation of this area at peak times, such as during snowmelt, could be expected to have consequences for the flow of water on the surface or underground. At the very least, it reduces the capacity of the neighbourhood to absorb water overall and it is this that would be the overarching intent of the soft landscaping provision, that each property does its share to reduce runoff, whether underground or on the surface, in general and onto neighbouring properties in particular.

105I will note one last concern. The deck is proposed to be maintained at 8cm from the west side neighbour’s fence and water flow from the side of the deck may well be a concern. I was not advised of the slope of the property, which way the water flows, and if it in fact flows towards the remaining grassed area on site.

Figure 5: Tab 5f. current backyard and deck

Figure 4: Tab 5e, previous rear yard deck

106I am not satisfied that the requested variance for the minimum area of soft landscaping in the rear yard maintains the general intent and purpose of this provision in the Zoning By-law.

Variance for Lot Coverage

107Mr. Chan advised that the intent of regulating lot coverage is to ensure a level of consistency with respect to massing and scale in a neighbourhood “concerning the amount of built form and outdoor amenity space on a lot.”

108In addressing this variance request, Mr. Chan reiterated his advice from the consideration of massing and scale with respect to the Official Plan. In his opinion, “there is no increased built-form, massing and scale produced by the two-tier deck… The pergola does not contribute to increased massing and scale, as it is compliant with the zoning by-law regulations for canopy covers over platforms.” As has been noted above, I am not fully in agreement with this perspective on massing and scale.

109I note that the variance is not for floor space index, which is an indicator of the amount of floor space, whether located on one storey or multiple, in relation to the area of the lot. This variance is for coverage, i.e. the percentage of land which is covered by structures. This percentage is unaffected by the massing of the pergola, for example. To my mind, it is the coverage of land that is at issue in this instance, not necessarily the three dimensional built form (massing).

110The core of Mr. Chan’s advice is that the purpose of this provision is to prevent an inappropriate amount of building on a lot. I can accept that this is the main purpose of the provision, but structures such as a deck are also captured in the intent to regulate coverage.

111The limitation on coverage serves not only to restrict the area of construction for built form compatibility reasons, but also to dovetail with the intent of other Zoning By-law provisions such as the soft landscaping provisions.

112I note that in this case I have found that the variance to reduce the required area of soft landscaping does not maintain the general intent and purpose of the Zoning By-law and the proposal will have to be modified to comply with the minimum percentage of soft landscaping permitted in the Zoning By-law, thereby affecting the required variance amount for coverage in turn.

113I am not satisfied on the basis of the evidence provided that the scale of the development, i.e. the area of the lot that is covered, maintains the general intent and purpose of the Zoning By-law to balance the amount of land that is covered by structures with the amount of the lot that is free of construction.

MINOR

114The courts have established that the test that a variance be minor is not that there be no impact, but that the imputed impact rises to the level of being an undue adverse impact of a planning nature.

115Mr. Chan provided his expert opinion that there would be no adverse effects from this development. I received no evidence from any of the neighbours that would underpin a factual finding that the requested variances are not minor.

AND DESIRABLE FOR THE DEVELOPMENT OF THE LAND

116For the same reasons set out above, I find that the variances for side yard setback, soft landscape and coverage are not desirable for the development of the land.

CONCLUSION

117For a variance to be approved, it must meet all four of the statutory tests set in the Planning Act. Failure to meet any one of the tests means that the variance fails.

118I have found that the variances requested for minimum side yard setback, minimum soft landscaping in the rear yard, and coverage, do not individually and cumulatively maintain the general intent and purpose of the Official Plan and the Zoning By-law and that they are not desirable for the development of the land.

119I have found that the requested variance to allow the raised deck to project 4.88m from the rear wall maintains the general intent and purpose of the Official Plan and the Zoning By-law, and that it meets the test for minor and desirable for the development of the land.

NOTICE

120Consideration of this variance has been complicated by the last minute change to the variances requested that resulted in some discrepancies with the written evidence previously submitted and in the absence of an accurate site plan and drawings to illustrate the proposal.

121In addition, there is the issue of notice. S.(45)18.1 of the Planning Act allows the tribunal to make a decision on an application that has been amended from the original application if written notice is given to the persons and public bodies who received notice of the original application. There is also a provision that the tribunal can waive the amendment to the original application, if in its opinion, the amendment is minor.

122I have been asked to waive notice for the requested variances. The changes are a correction to the previous description of the already built deck. I find that the change in the amount of the requested variances to be minor. No further notice is required.

DECISION AND ORDER

123The Appeal is allowed in part.

124The variance and condition contained in Appendix A is authorized subject to the condition contained therein.

A. Bassios

Panel Member

APPENDIX A

APPROVED VARIANCE AND CONDITION OF VARIANCE APPROVAL:

VARIANCE:

Chapter 10.5.40.50(4)(C), By-law 569-2013

Platforms attached to or within 0.3m of a rear main wall, located at or below the first storey, may be no higher than 1.2m above the ground at any point below the platform except where the platform is attached to, or within 0.3m of a rear main wall where the platform floor, located 2.5m or less from the rear main wall, may be no higher than the level of the floor from which it gains access.

The platform projects 4.88m from the rear wall.

CONDITION:

The platform attached to or within 0.3m of the rear main wall may be no higher than 1.25m above the ground at any point below the platform.

In the Residential Zone category, the level of the floor of a platform, such as a deck or balcony, permitted in accordance with (2) above and located at or below the first storey of a residential building other than an apartment building, may be no higher than 1.2 metres above the ground at any point below the platform, except where the platform is attached to or within 0.3 metres of: (C) a rear main wall, any part of the platform floor located 2.5 metres or less from the rear main wall may be no higher than the level of the floor from which it gains access

In the Residential Zone category a canopy, awning or similar structure, with or without structural support, or a roof over a platform which complies with regulation 10.5.40.60(1), are subject to the following: (A) a roof, canopy, awning or similar structure above a platform meeting the requirements of regulation 10.5.40.60(1) may encroach into a required minimum building setback to the same extent as the platform it is covering; and

Footnotes

In the Zoning By-law, a Platform is described as a deck, porch, balcony or similar structure.
Exhibit 1: Appellant’s Document Disclosure, Tab 2c.
Exhibit 2: Expert Witness Statement Chan, pdf page 15
Not labelled or annotated.
OP Policy 4.1.8
Platforms at or Below the First Storey of a Residential Building other than an Apartment Building
(2) Canopies and Awnings