Toronto Local Appeal Body

40 Orchard View Blvd, Suite 253 Toronto, Ontario M4R 1B9

Date: 2026-06-18

25 262099 S53 03 TLAB 25 262103 S45 03 TLAB 25 262106 S45 03 TLAB

Octave Design and Build Inc (Re), 2026 ONTLAB 419

DECISION AND ORDER

Issuance Date: June 18, 2026

PROCEEDINGS COMMENCED UNDER subsection 45(12) and subsection 53(19) of the Planning Act, R. S. O. 1990, c. P. 13, as amended

Appellant(s): OCTAVE DESIGN AND BUILD INC

Applicant(s): WE OUGHTRED & ASSOCIATES INC

Property Address: 35 ELDER AVE

COA File No.: 25 127216 WET 03 CO (B0010/25EYK) 25 127222 WET 03 MV (A0103/25EYK) 25 127226 WET 03 MV (A0104/25EYK)

TLAB Case File No.: 25 262099 S53 03 TLAB 25 262103 S45 03 TLAB 25 262106 S45 03 TLAB

Hearing Date(s): May 04, May 26 and June 02, 2026

Deadline Date for Closing Submissions/Undertakings: June 05, 2026

Decision Delivered By: TLAB Panel Member R. Kanter

REGISTERED PARTIES AND PARTICIPANTS:

People Type Applicant Appellant Party Party Participant Participant Participant Participant Participant

First Initial. Last Name WE OUGHTRED & ASSOCIATES INC OCTAVE DESIGN AND BUILD INC CITY OF TORONTO LONG BRANCH NEIGHBOURHOOD ASSOCIATION KONRAD SURMA ANDY CHOLES LINDSAY MARIE BAXTER JAQUELINE PEPPER ANDREW CALDWELL

Representative MICHAEL NEMANIC SARAH BARNETT YELDA NURI JUDY GIBSON

INTRODUCTION AND CONTEXT

1On November 20, 2025, the Toronto Committee of Adjustment (the “C of A”) heard an application to sever 35 Elder Avenue (the “Site”) into two lots, and applications for minor variances to construct a new multiplex containing four units and a two-storey garden suite in the rear of each of the severed lots.

2The C of A refused the application to sever 35 Elder Ave. into two lots, 35A Elder and 35B Elder.

3The C of A also refused the application for three variances for each of the proposed lots:

i. Minimum lot frontage: Required – 12 m Proposed – 9.52 m

ii. Minimum lot area Required – 370 m² Proposed – 362.9m²

iii. Maximum permitted number of dwelling units on each lot Maximum permitted – 4 Proposed - 5

4On December 2, 2025, Michael Nemanic, counsel for the Appellant, appealed the decision of the C of A to refuse the severance and minor variances to the Toronto local Appeal Body (the “TLAB”).

5On January 28, 2026 the TLAB issued a Notice of Hearing setting out dates for Party and Participant identification, document disclosure and one day for a hearing on May 4, 2026.

6On February 17, 2026, Mr. Nemanic filed revised plans showing that the Appellant no longer proposed to build a garden suite in addition to a fourplex on each of the proposed lots. The Appellant also and proposed moving the proposed fourplexes further back from the front lot line (the “Revised Plans”). There was no change in the severance application.

7On February 27, the City and Long Branch Neighbourhood Association (“LBNA”) filed requests for Party status. Seven local residents filed requests for Participant status.

8The Appellant submitted documentary evidence prior to the hearing in support of the applications for a severance, and two minor variances for minimum frontage and minimum lot area (the “Revised Applications”). LBNA and five residents submitted documentary evidence in opposition to the Revised Applications. The City did not submit evidence prior to the hearing.

THE LEGISLATIVE AND POLICY FRAMEWORK

9Provincial 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.

10Provincial 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.

11Consent – 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;

1the 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).

12Variance – 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.

APPELLANT’S CHALLENGE TO LBNA REPRESENTATIVE

13Shortly after the beginning of the hearing, Mr. Nemanic challenged the right of Ms. Gibson to act as a Representative of the LBNA, on the grounds that she is not a lawyer. Ms. Gibson indicated that she had represented LBNA before the TLAB on many previous occasions.

14According to the TLAB Rules of Practice and Procedure (the “Rules”), a Party may be represented by a Representative. A “Representative” means a person authorized under the Law Society Act or is otherwise authorized by law to represent a Party.

15TLAB’s Form 5 states that:

“Generally, with the exception of a family member or close acquaintance, a Representative requires qualifications recognized under the Law Society Act.”

16TLAB’s Public Guide states that:

“Legal representation is not required, but a Party may wish to hire counsel, a representative, or an agent. . . Lawyers and Representatives question witnesses and make statements and arguments based on the evidence presented. A Representative, who can be either a lawyer or a paralegal, must have a licence under the Law Society Act to represent a party in a legal proceeding. However, an exemption exists allowing persons who are not in the business of providing legal services to occasionally provide assistance. Should you wish to have a lawyer or other individual represent you at a hearing . . . (emphasis added for all underlined words in par. [14], [15], and [16].

17There is no legal bar to a non-lawyer representing a Party at the TLAB. The TLAB’s Rules, Forms and Public Guide all anticipate representation by a non-lawyer.

18I decided that Ms. Gibson could act as a Representative of the LBNA. However, I would hold her to a similar standard of conduct as a lawyer with respect to procedure at the hearing, including the presentation of evidence, cross-examination and submissions.

SUMMARY OF EVIDENCE

A – Appellant’s Evidence

19Mr. Nemanic requested the TLAB to enter the following documents as exhibits:

Exhibit # Exhibit Description Date

Ex. 1 Expert Witness Statement, Jim Kotsopoulos March 30, 2026

Ex. 2 Responding Expert Witness Statement April 23, 2026

Ex. 3 Appellant Document Disclosure – Planning Policies, Regulations, LBNA Guidelines March 30, 2026

Ex. 4 Non-statutory Documents – Expanding Housing Options in Neighbourhoods, Consent Decisions March 30, 2026

Ex. 5 Plans for 35A & 35 B Elder Ave., prepared by Sakora Design February 17, 2026

Ex. 6 Updated Zoning Notice, Finalized FSI April 2, 2026

Ex. 7A Arborist Expert Witness Statement & CV March 30, 2026

Ex. 7B Arborist Report, 35A Elder March 30, 2026

Ex. 7C Arborist Report, 35B Elder March 30, 2026

20Mr. Nemanic called Mr. Jim Kotsopoulos (“JK”) as his first witness. He asked the witness about his education and experience. I qualified JK as an expert witness, able to give opinion evidence in the field of land use planning.

21JK described the Site as rectangular in shape, with an existing lot frontage of 19.04 m, and a lot area of 725.8m². It contained a two-storey detached dwelling.

22The witness prepared a graphic chart showing a geographic neighbourhood bounded by Lakeshore Blvd. on the south, Twenty Fourth St. to the east, Thirty Second Street to the west, and the CN tracks to the north, containing approximately 740 lots. He also prepared a chart showing an immediate context of 31 lots.

23JK stated that the lots in the broader neighbourhood contain a mix of single-family homes, duplexes, triplexes, fourplexes, townhouses and apartment buildings.

24According to the witness, 65.8% of the lots in the broader neighbourhood have frontages less than 9m, and 66% of the lots have areas less than 340m².

25JK reviewed the planning regulations for the Site and neighbourhood.

26The Planning Act requires the TLAB to have regard to many matters of provincial interest, including the adequate provision of a full range of housing and the promotion of development that is designed to promote public transit (Section 2 j and q).

27The Provincial Policy Statement, 2024 (the “PPS”) encourages efficient land use patterns with an appropriate range and mix of residential housing supported by public transit.

28Toronto’s Official Plan (the “OP”) designates the Site as Neighbourhoods. Section 4.1.5 requires development in established neighbourhoods to respect and reinforce the existing physical character of each geographic neighbourhood, including in particular:

b) prevailing size and configuration of lots.

29Prevailing is defined to mean the most frequently occurring, or in areas with a variety of building types, occurring in substantial numbers in the immediate context of the Site.

30In oral evidence, JK referred to OPA 649, adopted in 2023 through Site and Area Specific Policy 826 (“SASP 826”). SASP 826 permits development of multiplexes in Neighbourhoods, subject to the following policies:

i) Will maintain the low-rise built form of each geographic neighbourhood, including in particular:

B prevailing size and configuration of lots;

ii) Is encouraged to contain large units. In the context of multiplex developments, “large” refers to two-and three-bedroom units.

iv) should not result in the injury or removal of a healthy tree protected under the Municipal Code on the subject property

31JK referred to By-law 569-2013 (the “ZBL”). According to the ZBL, the Site is zoned RM – Residential Multiple (u4)(x2).

32JK also referred to By-law 648-2025, adopted in June 2025 (the “Multiplex ZBL”). According to the Multiplex ZBL, a fourplex is now permitted in all residential zones. A fourplex is subject to the same requirements for lot frontage and lot area as a detached house – 12 m frontage, and 370m² in area. It is no longer subject to a floor space index restriction, due to Section 88 of the Multiplex ZBL.

33JK’s opinion was supported by the Revised Zoning Examiner’s Notice contained in Exhibit 6, which required variances for lot frontage and size but not floor area.

34JK noted that the Revised Plans did not require any variance with respect to building form, such as height, density, length, depth or setbacks.

35JK reviewed the Site Plan for the Full Site (Ex. 5 SP) He stated that six existing trees on the Site would be preserved, including a mature white spruce on the southwestern portion. While eight trees would be removed, six replacement trees would be planted, resulting in an overall increase in tree coverage,

36JK also referred to the Long Branch Neighbourhood Design Guidelines (the “LBN Guidelines”). He noted that the LBN Guidelines stated that the neighbourhood is characterized by moderate to wide lot frontages, ranging between 9.0 metres to 15.24m. In other words, the proposed lots, with frontages of 9.52m, would fit the moderate lot frontages characteristic of Long Branch, particularly the shorter frontages found north of Lakeshore.

37JK also noted that the LBN Guidelines emphasized the protection of existing significant trees located along the street, rather than in rear yards. The Revised Plans would retain an existing mature tree in front of the proposed fourplex at 38B Elder. The only mature tree to be removed was in the rear yard.

38JK provided his opinion that the severance met the criteria of S. 51 (24) of the Planning Act, and the variances, individually and collectively, met the tests set out in S. 45 of the Planning Act.

39Ms. Gibson cross examined JK. He agreed that his geographic neighbourhood contained different residential designations allowing different forms of residential buildings, such as townhouses. He agreed that existing townhouses and multiplexes in the neighbourhood provided parking.

40JK agreed that the Revised Plans showed four of the proposed multiplex units would be located 2.4m or 8 feet below grade. The proposed units had multiple stairs between levels and would not be accessible. The Revised Plans did not delineate space to store garbage bins.

41Mr. Nemanic called Mr. Tom Bradley (“TB”) as his second witness. He asked the witness to describe about his education and experience. I qualified TB as an expert witness, able to give opinion evidence in the field of arboriculture.

42TB reviewed his Arborist Report and Tree Preservation Plan for 35A Elder Avenue (“Arborist Report - 35A”) entered as Ex. 7B.

43The lot proposed for 35A Elder (the westerly half of the Site) currently contains six (6) trees. Five of the trees are on the Site and are not protected by the Municipal Code, since none have diameters of 30 cm or more. Four of the trees are dwarf spruce and will not grow significantly larger; the fifth is a green ash, susceptible to destruction by the ash borer. There is currently one small tree on City property in front of the westerly half of the Site.

44The Arborist Report - 35A proposes to remove 5 undersize trees on proposed lot 35A, retain the small tree on City property, and plant three replacement trees in the rear yard. According to TB, the replacement trees will, on maturity, have a canopy of 35m, compared to 8m for the trees to be removed.

45TB also described his Arborist Report and Tree Preservation plan for 35B Elder Avenue (“Arborist Report - 35B”) entered as Ex. 7C.

46The lot proposed for 35B Elder currently contains eight (8) trees; all located on the Site. Three trees are protected by the Municipal Code, since they have diameters greater than 30cm. The remainder have smaller diameters.

47The Arborist Report, 35B proposes to remove one large silver maple, with a trunk diameter of 123cm and a canopy of 15m located behind the existing house. It will preserve a white spruce located in front of the existing house and a white spruce in the rear yard. It will preserve three undersize trees and remove two. The three trees to be removed have a current canopy of 20.5m. Three replacement trees will be planted, with a potential canopy of 30m.

48According to the Arborist’s Reports for 35A& 35B:

• there are 14 trees on the Site; 6 will be preserved and 8 will be removed

• 6 replacement trees will be planted

• the canopy will eventually be increased by 36.5m.

49According to TB’s oral evidence, after the development, there should be some improvement to the tree canopy.

50TB was cross examined by Ms. Gibson. He agreed that the Revised Applications would result in the removal of a large silver maple, a healthy tree protected by the Municipal Code.

51TB agreed that the Appellant provided him with the Revised Plans and he prepared his evidence based on the Plans. He did not prepare a report based on maximizing tree preservation.

52TB could best protect existing trees on the Site if he were on call as the project moves forward.

53I asked the Appellant to consider whether it would be willing to retain TB during the construction period, should I decide to approve the Revised Application. Counsel agreed to consider my request and reply in his submissions.

54I also asked the City if it would be willing to plant a tree on City lands in front of the house proposed for 38A Elder, should I approve the Revised Application.

B – The City’s Position

55Counsel for the City stated that the City no longer opposed the Revised Applications, since the Revised Plans eliminated the garden suites, and moved the proposed dwelling units back sufficiently to allow an existing tree to be preserved in front of the fourplex proposed for 38B Elder.

C – LBNA’s Evidence

56Ms. Gibson requested me to enter the following documents as Exhibits:

Exhibit Exhibit Description Date

8 LBNA Witness Statement March 30, 2026

9 LBNA Document Disclosure March 30, 2026

10 LBNA Response to Appellant Expert Witness Statement April 13, 2026

11 Map of Fourplexes in Neighbourhood April 13, 2026

57Ms. Gibson called Ms. Christine Mercado (“CM”) as a witness. CM is the Chair of the LBNA.

58According to Ms. Mercado, Toronto has met the provincial target for population growth. The population of Long Branch increased by 13% since 2016. The Site was not located in a Strategic Growth Area, on a major street or in a major transit station area. Neither Long Branch nor the Site was designated as a priority area for population growth.

59Ms. Mercado described the immediate context of the Site as forty-four lots on the north and south sides of Elder between Twenty Ninth and the rear property lines of the properties facing west on Twenty Fourth. She described the broader context as 182 lots north of Fairfield between Twenty Sixth Street and Twenty Ninth St., which are all zoned RM.

60The prevailing built form in both the immediate and broader neighbourhoods is single detached. Therefore the proposed multiplex does not respect and reinforce the existing neighbourhood character.

61The existing lot frontage is compliant with the ZBL and is only slightly larger than the minimum required frontage for a single detached house.

62CM described 16 triplexes in the neighbourhood. All but one are located on lots 15.24 m or longer (Ex. 9 pages 66 & 67).

63CM described a townhouse project located on the south side of Elder west of the Site known as 68 Daisy. 68 Daisy was permitted by an OMB Decision, which required 146 parking spaces for 73 units, and contained a day care and private school.

64CM agrees that fourplexes are now permitted in Neighbourhoods. However, they are subject to policies including the following:

ii - encouraged to include large units

iv - should not result in the injury or removal of a healthy tree protected under the Municipal Code.

65Each proposed fourplex would be small. Unlike people living in larger units, they would tend to move more frequently. The proposed units did not meet the liveability test for large units set out in SASP 826.

66CM emphasized that the LBNA is not opposed to one (1) multiplex being built on the existing lot. It opposed the creation of two undersized and non-compliant lots.

67There is no parking planned for eight dwelling units. There is no direct or quick route to the subway or Lakeshore GO station. It is unrealistic to expect that none of the residents in the eight proposed units would live and work without a car.

68The LBNA has had experience with new residential construction. Building larger homes, especially with living areas and foundations far underground, will result in the removal of existing trees, despite the City’s attempts to protect them.

69Ms. Mercado referred to Toronto OP Policy 3.4, concerning the Natural Environment, stating that private building should:

“preserve and enhance the urban forest by providing suitable growing environments for trees; increase tree canopy coverage and diversity, especially of long-lived native and large shade trees.

She stated that the removal of three mature by-law protected trees was contrary to the OP.

70The Long Branch tree canopy is shrinking, and this application would further shrink, rather than expand the canopy, contrary to numerous City policies. The cumulative effect of the proposed consent and variances at 35 Elder will have unacceptable impacts on the tree canopy.

71The City is currently reviewing the size of trees protected by the Municipal Code and will likely decrease the diameter of trees to be protected. Mature trees, such as those that currently exist at 35 Elder, provide irreplaceable ecological benefits that young trees take decades to match.

72The application does not meet the criteria for a severance. It is premature, since the OP contemplates intensification in other locations. It does not conform to the OP with respect to the dimensions and shapes of the lots, or the protection of large mature trees.

73It does not meet the four tests for a variance. It does not maintain the general intent and purpose of the OP, ZBL, is not minor and is not desirable.

74Mr. Nemanic cross examined CM at some length. She agreed she was not a professional planner or arboriculturist, but a lay person who lived in the area, had lived experience, and participated in over 30 TLAB hearings.

75CM agreed that the LBNA did not provide frontage or area statistics or for all lots in the geographic neighbourhood she described. However, the LBNA provided several maps showing that virtually all of the triplexes in the neighbourhood were on ZBL compliant lots.

76CM agreed that the proposed fourplexes met the technical definition for large units in SASP 826, but stated they were not liveable, since they did not provide parking, interior space for children’s belongings, or exterior space for garbage containers, and four units were below grade.

77CM did not agree that lots with the proposed frontage met the LBNA Guidelines. She noted that the ZBL in effect when the Guidelines were adopted required a minimum lot frontage of 21m for a fourplex located in an RM zone.

78CM agreed that the townhouses at 68 Daisy were 12m high, and the Revised Plans showed fourplexes that were 10.7m in height. However, she noted that the townhouses were constructed pursuant to an OMB decision rendered before the LBNA was formed.

79CM agreed that six trees were to be planted but stated that replanting trees was challenging and there was no guarantee that they would survive. She disputed a report that the current tree canopy coverage in Long Branch was improving.

80CM agreed that a number of the TLAB decisions refusing severances resulted in lot frontages less than 9.52m and/or lot areas less than 362.9m² (Ex. 9, various pages).

D – Participants’ Evidence

81Ms. Jacqueline Pepper spoke as a Participant. She lives on Twenty Sixth St. a few houses east of the Site. She was concerned about the lack of day care and school capacity in the neighbourhood. She also challenged the assumption that residents of the fourplexes would use transit rather than cars. Building eight units without parking would be unfair for the families that want to move there and for the existing people in the community.

82Mr. Konrad Surma also spoke as a Participant. He also lives near the Site. In addition to the concerns about day care and parking expressed by Ms. Pepper, he is also concerned about the negative impact the Revised Application will have on his privacy. In response to a question from Mr. Nemanic, Mr. Surma stated that the trees proposed to be planted in the rear yards where the silver maple now stands would take time to grow.

83Ms. Lindsay Baxter lives around the corner from the Site. In addition to concerns about day care availability and lack of parking, she was concerned about waste and content containment. The large number of small units did not make adequate provision for the stuff that children accumulate or the garbage that families generate, particularly since there would not be a property manager on site.

84Mr. Andy Choles lives many blocks from the Site. However, he appeared on behalf of the LBNA in opposition to the consent and variances proposed at the CoA. He estimated that eight fourplexes would house up to 32 people, many of whom would require cars to function. He sees merit in reducing - but not eliminating – the parking requirement for fourplexes. Mr. Choles also expressed concern about units below grade exacerbating drainage issues in the neighbourhood, and the lack of outdoor storage for garbage. In his view, the Appellant was jamming units onto the Site, rather than acting sensibly.

SUBMISSIONS

85Mr. Nemanic noted that there had been additional variances before the C of A, for additional units resulting from garden suites on each severed lot initially proposed by the Appellant. The Appellant was no longer pursuing garden suites, and the City no longer opposed the Revised Application.

86Counsel for the Appellant referred to land use planner JK’s evidence concerning lot frontages and sizes. The expert evidence showed that a majority of lots in both the broader neighbourhood and immediate context were less than 9m in frontage and smaller than 340m² in size.

87Mr. Nemanic submitted that there were a variety of building typologies in the neighbourhood. The Appellant stressed that the existing lot with 19m frontage was atypically wide. The proposed severed lots, with a frontage of 9.5m and size of 362.9m were found in substantial numbers in the neighbourhood, which met the test for a severance in Policy 4.1.5 of the OP.

88The Tree Planting Plan submitted by arborist TB showed that tree replanting would result in an increase in the tree canopy. Consequently, the expert evidence showed that the Revised Application met the intent of the tree protection provisions of the OP, including SASP 826.

89The Revised Application provided more ground-related housing, including the provision of eight “large units” each containing three bedrooms. Consequently, the Revised Applications met the requirements of SASP 826.

90The Revised Application met the general intent and purpose of the ZBL. It provided lots of a similar frontage and area as those found in the neighbourhood and did not require any variances for built form on the severed lots.

91The Revised Application was desirable since it represented modest intensification which created more ground related housing. It was minor, since the reduction in frontage was only 2.5m shorter than that required, and the reduction in lot size was only 7.1m² smaller in area.

92Mr. Nemanic cited two TLAB cases in support of the Revised Applications: 579 Glencairn¹ and 5 Marina Ave².

93Ms. Gibson submitted that the Revised Application failed to meet the criteria for a severance or minor variances.

94The LBNA representative stated that the Revised Application was premature. Fourplexes were allowed on lots in Long Branch providing they had a frontage of 21m for many years. SASP 826, adopted in May 2023, reduced the lot frontage to 12m. TLAB should examine the impact of fourplexes allowed on lots with a frontage of 12m before approving fourplexes on lots even narrower than those allowed by recent OP amendment.

95The Revised Application did not conform to the OP with respect to lot frontage, lot size, and tree protection. Nor did it have regard for the adequacy of school sites, particularly pre-school sites, as illustrated by the evidence of the participants.

96The Revised Application did not comply with the qualitative requirements of SASP 826. That policy required fourplexes to be liveable homes for various households, including families with children and seniors with home care. The proposed fourplexes were not liveable since they did not provide parking, aboveground bedrooms, outdoor garbage storage, space for children’s belongings, or accessibility for seniors.

97Ms. Gibson emphasized that the LBNA supported one multiplex on the existing lot, but the Revised Application was overdevelopment on two undersize lots.

98Ms. Gibson cited nine recent decisions refusing severances, primarily in Long Branch.³

99I have reviewed the decisions cited by Ms. Gibson. I find they are of limited assistance, since most proposed lots smaller than those proposed in the Revised Application. In other cases, Appellants proposed built form variances, such as increases in floor area.

ISSUES AND ANALYSIS

100I will first deal with the amendment from the variances before the C of A to the Revised Application. I will then consider whether the criteria for a consent to sever the Site into two lots has been met. If the Appellant meets the criteria to create two lots, I will consider the tests for minor variances. In this case, the subject matter of the variances – the frontage and size of lots - is closely related to some of the criteria for the severance.

101As I noted above in par. [3] & [6], the application to sever the Site into two lots is the same as that before the C of A. However, the Appellant dropped the garden suite proposed for each of the severed lots. Consequently, the variance in the proposed number of dwelling units from four to five for each lot has been eliminated.

102The amendment makes the Revised Application somewhat closer to the development permitted as of right. In my opinion, the amendment to the original minor variance applications before the C of A is minor, and the TLAB need not give notice to the persons who received notice of the original application before the C of A, pursuant to S. 45 (18.1.1) of the Planning Act.

103The Appellant provided detailed statistics concerning lot frontage and area in the immediate context of the Site (33 lots), and in the broader neighbourhood (740 lots). The Appellant showed that the proposed lots, with a frontage of 9.52m had a frontage as long as approximately two-thirds of the existing lots in the neighbourhood. The Appellant also showed that the proposed lots, with an area of 362.9m², were as large as approximately two-thirds of the existing lots in the neighbourhood.

104The Appellant also provided evidence that the proposed lot frontage was considered “moderate to wide” in the LBN Guidelines, a document often cited with favour by the LBNA.

105The LBNA took issue with the size of the immediate context and broader neighbourhood delineated by the Appellant. It claimed that the immediate context and broader neighbourhood should be limited to lots with the same zoning as the Site. However, the LBNA did not provide statistics showing how many lots in its immediate context (44 lots) or broader neighbourhood (182 lots) were the same frontage or size as the proposed lots.

106According to Policy 4.1.5 of the OP:

“Development in established Neighbourhoods will respect and reinforce the existing physical character of each geographic neighbourhood, including in particular, prevailing size and configuration of lots.

107Policy 4.1.5 goes on to define prevailing as the most commonly occurring but provides a different definition where there is a variety of physical forms, namely occurring in substantial numbers.

108Based on the evidence of the Appellant’s land use planner, I agree that there are a variety of physical forms in the neighbourhood. I find that the Appellant has provided unrefuted advice that the proposed lot frontages are consistent with a majority of those found in the neighbourhood. Alternatively, I find that the proposed lot frontages exist in substantial numbers in the neighbourhood.

109I understand LBNA’s concern that the City may have ignored or not provided sufficient weight to the possibility that a number of potential residents on this Site will have cars and require parking. However, City Council has made a definitive decision to eliminate all parking requirements. I do not have jurisdiction to ignore the clearly expressed view of City Council with respect to parking.

110I also understand the LBNA’s concern about the some of the liveability or desirability features of the proposed units, such as bedrooms below grade, lack of indoor storage space, and lack of outdoor garbage space. However, City Council has not seen fit to regulate these features - perhaps on the basis that such regulation might inhibit the creation of more ground-related housing which Council has identified as an emerging area of planning concern.

111The proposed removal of the silver maple, which would result from the severance and related variances, raises the most difficult issue in this appeal.

112The Appellant called an expert witness in the field of arboriculture. TB provided detailed reports on the proposed retention, removal and replacement of trees on the site. The number of trees, large and small, is to be reduced from 14 to 12. However, the tree canopy is to be increased, due to the replacement of small coniferous trees with larger deciduous trees. The arborist was candid in admitting, under cross examination, that one large healthy protected tree, a silver maple, would be removed.

113The LBNA was adamant that this removal was contrary to the recent OP provisions allowing multiplexes, which state that the development of multiplexes should not result in the injury or removal of a healthy tree. The LBNA also cast doubt on the likelihood that all of the existing trees to be preserved would survive construction of the fourplexes, and on the likelihood that all of the trees to be replanted would reach maturity.

114I have considered the legislative provisions, OP policies, ZBL amendments and background studies⁴ supporting the construction of multiplex housing, which the Appellant emphasized. I have also considered the legislation, OP policies and background studies⁵ protecting trees and expanding the tree canopy relied on by the LBNA.

115I find that I can best support and balance both of these sound planning goals by allowing the severance and variances, subject to two conditions to provide additional protection for trees. This approach is broadly consistent with the decision in 5 Marina, where TLAB Member Swinkin added several conditions to augment tree protection while allowing a severance and variances for frontage, lot size and floor space index.⁶

116I have reached this decision in part due to the City’s settlement with the Appellant, and its willingness to add another street tree, if possible.

117I will add a condition requiring the City to consider adding an additional street tree, at the expense of the Appellant, in front of the severed lot at 35A Elder. If Urban Forestry concludes that a tree cannot be planted on City Lands, the Appellant is to plant a tree in front of 35A Elder at its expense.

118I will add a further condition requiring the Appellant to retain TB, or an equally qualified arborist, until the construction of the fourplexes is substantially complete and the trees described in the Tree Replacement Plans for 35A and 35B Elder Avenue have been planted (Ex. 7B page 4 and 7C page 4).

CONCLUSION

119I will allow the Revised Application, consisting of an application to sever 35 Elder into two lots. I will allow the variances to permit 35A and 35B Elder to each have a frontage of 9.5m and an area of 362.9m², subject to conditions concerning the planting of an additional street tree, and supervision of the retention and removal of existing trees and planting of additional trees by a qualified arborist.

DECISION AND ORDER

120The appeal is allowed; the decisions of the Committee of Adjustment dated November 25, 2025, are set aside.

121The application for consent to sever is approved subject to the conditions set out Schedule A below.

Schedule A: Standard Consent Conditions

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:

(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 as outlined in Condition 6.

(2) Municipal numbers for the subject lots, blocks, parts, or otherwise 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) 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.

(7) Within TWO YEARS of the date of the giving of this notice of decision, the applicant shall comply with the above-noted conditions.

122The applications for minor variances to permit two lots, each with frontages of 9.5m and areas of 362.9m²are approved, subject to the following conditions:

1. The City shall add an additional street tree, at the expense of the Appellant, on City property in front of the severed lot at 35A Elder. In the event that Urban Forestry determines that it is undesirable to plant a tree on City lands, the Applicant shall plant an additional tree, at its expense, on its lands in front of 35A Elder.

2. The Appellant shall retain Tom Bradley, or an equally qualified arborist, until the construction of the fourplexes is substantially complete and the trees described in the Tree Replacement Plans for 35A and 35B Elder Avenue have been planted (Ex. 7B page 4 and 7C page 4).

3. The Site Plan for the Full Site shall be attached to this Decision as Schedule B, and the Tree Replacement Plans shall be attached as Schedule C.

R. Kanter Panel Member

Footnotes

1. 1Korkaz (Re) 2025 ONTLAB 334
2. 2Ianetti v. Toronto 2023 ONTLAB 72
3. 3Ex. 9, various pages)
4. 4“Expanding Housing Options in Neighbourhoods: Multiplex Study - Final Report”
5. 5E.g. – “Sustaining and Expanding the Urban Forest – Toronto’s Strategic Forest Management Plan 2012-2022
6. 6Supra, footnote 2