Always Have a Plan at the Ontario Land Tribunal … and Hire a Planner

Joey Coleman

A board outside the Committee of Adjustment hearing room with the staff reports for public viewing.

The Ontario Land Tribunal issued a rare denial decision earlier this month, overturning the Hamilton Committee of Adjustment’s approval of minor variances which were recommended for support by City staff.

Why?

Officially, the OLT ruled the variances were not minor and did not constitute good planning.

How?

The OLT decides what is “good planning” based upon the testimony and documentation presented before it.

Expert witnesses are given great weight. In nearly all cases, if one side brings forth experts and the other side does not, the side with the experts wins.

This is exactly what happened in this case involving the property at 61 Lovers Lane in Ancaster.

Briefly, the owner sought five variances to decrease lot setbacks to permit the construction of a large L-shaped home and an in-ground backyard pool on this corner lot property.

The variances were approved as minor by the Committee of Adjustment, following a supportive staff report. The two immediately adjacent neighbours, who spoke against the proposal at CoA, appealed to the Ontario Land Tribunal.

At the Tribunal, the neighbours hired Registered Professional Planner to provide expert testimony stating the lack of setbacks from neighbouring properties violates the Official Plan and the Zoning Bylaw, are not minor, and will adversely impact their privacy.

The property owner called no witnesses, merely submitting the City staff planning report without subpoenaing the City’s staff planner to speak to it.

Therefore, the only evidence before the Tribunal was that opposing the proposal and the OLT ruled against the plan.

Had the owner hired their own expert witness and subpoenaed the City planner, the outcome likely be different.

The Hamilton Committee of Adjustment Hearing

In September 2021, the City’s planning staff recommended [Page 88 of this document] approving the variances, finding they were minor, and Hamilton’s Committee of Adjustment agreed.

The CoA September hearing [YouTube link] heard delegations from the two neighbours opposing the application, and many letters from area residents opposing the application.

After almost 30 minutes of debate, the CoA approved the variances as minor by a 4-3 vote.

Both the neighbouring property owners appealed the decision to the OLT.

The OLT Hearing

The OLT hears the matters De Novo, a new, they do not review the Committee of Adjustment hearing and do not give deference to it.

The neighbouring property owners were prepared. They submitted their statements, mobilized their neighbours who filed participant statements, and most importantly hired a Registered Professional Planner to provide expert testimony to the Tribunal.

The property owner was unprepared for the March 2022 OLT hearing. The day prior to the hearing, they hired a personal injury lawyer to represent them. This lawyer asked for an adjournment to prepare, the neighbours objected as they had their paid witness retained and taken time off work for the hearing.

The Tribunal recessed asking the neighbours to provide their costs for the day, for the Tribunal to consider in deciding upon the adjournment.

“Upon resumption of the hearing, Ms. Lamont advised that her retainer had ended,” the Tribunal wrote. Left with no lawyer, the property owner’s contractor “who had little, if any experience, before the Tribunal” represented them.

They did not subpoena City staff to testify to their report, merely filing the minimal staff comments provided to the CoA.

Left with no experts, no evidence, and no preparation, the owner lost.

The lesson here is expertise matters.

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First published: April 28, 2022
Last edited: April 28, 2022
Author: Joey Coleman
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