What is a minor variance, and who can object to one?
The zoning by-law says the deck is too close to the lot line. The Planning Act provides a way to ask for permission anyway, and the whole test for it fits in a single sentence.
The short answer
A minor variance is permission to depart from the zoning by-law without changing it. A committee of adjustment may grant one where, in its opinion, the departure is minor, desirable, and keeps the intent of the by-law and official plan. Robin Patel, a REALTOR® in Brampton, checks whether a structure relied on one.
Written forOwners in the GTA who want to build something the zoning by-law does not permit, and buyers who have found that an addition, a deck or a second unit on the property depended on a variance.
The short version
- A minor variance lets an owner depart from the zoning by-law in a specific way without the by-law itself being changed.
- The Planning Act test has three limbs plus a judgment call: the variance must be minor, desirable for the appropriate development or use of the land, and keep the general intent and purpose of both the by-law and the official plan.
- The decision turns twice on the opinion of the committee, which is why outcomes vary between municipalities and between applications.
- A committee may attach terms and conditions, and may require the owner to enter into an agreement with the municipality.
- An appeal may be brought within 20 days of the decision by the applicant, the Minister, or a specified person or public body with an interest, and specified person is a closed list of infrastructure operators.
What a minor variance is
A zoning by-law sets rules for what can be built and where: how far a wall must sit from a lot line, how tall a structure may be, what the land may be used for. A minor variance is permission to depart from one of those rules in a particular case, granted by a body called the committee of adjustment, without the by-law itself being amended.
That is the distinction worth holding on to. A rezoning changes the rule for the land. A variance leaves the rule in place and permits a specific departure from it, which is why it is the route for a deck that sits half a metre too close to the fence rather than for a change of what the neighbourhood is for.
That is the distinction worth holding on to. A rezoning changes the rule for the land.
The test, which is one sentence long
The Planning Act puts the entire test in a single provision. The committee may authorize such minor variance from the provisions of the by-law as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained.
Read slowly, that is three requirements and two judgment calls. The variance must be minor, it must be desirable for the appropriate development or use of the land, and the general intent and purpose of both the by-law and the official plan must be maintained. Twice the provision says in the opinion of the committee, which is the reason two apparently similar applications in two municipalities can end differently.
| Element | What the Act says |
|---|---|
| Who may apply | The owner of the affected land, building or structure, or a person authorized in writing by the owner |
| Minor | The committee may authorize such minor variance from the provisions of the by-law |
| Desirable | As in its opinion is desirable for the appropriate development or use of the land, building or structure |
| Intent preserved | If in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained |
| Extra criteria | The variance must also conform with any prescribed criteria and any criteria the local municipality has established by by-law |
Conditions, and who can appeal
A grant is not always unconditional. The Act allows any permission granted to be for such time and subject to such terms and conditions as the committee considers advisable and as are set out in the decision, and where conditions are imposed the committee may require the owner to enter into one or more agreements with the municipality. A variance can therefore come with obligations attached to it.
The appeal side is where the common understanding is out of date. An appeal may be brought within 20 days of the making of the decision, and the Act names who may bring it: the applicant, the Minister, or a specified person or public body that has an interest in the matter. Specified person is a defined term, and the definition is a closed list of infrastructure operators — electricity, gas, pipelines, propane, railways within a set distance, telecommunications, NAV Canada and certain airports. A private neighbour is not in it.
Why this matters when you are buying
Plenty of existing structures stand because a variance was granted, and some of those grants carried conditions or required an agreement with the municipality. If the addition, the garage or the second unit depended on one, the useful questions are whether the variance was actually granted and whether anything it required was ever done.
The second half of that is the part people forget. A condition that was imposed and never satisfied is a loose end attached to the property rather than to the person who left it, so it belongs with your lawyer during the condition period alongside the title search.
Written by
Robin PatelSalesperson · The Agency Toronto
Updated
Published
Read in your language
A machine translation, not Robin’s words. For anything that decides money, ask him in Gujarati or Hindi directly.
