Minor variance마이너 배리언스, 소규모 예외 허가

What is it?

A city’s zoning by-law sets standards such as building height, setbacks (how far a building must be from the property line) and floor area. When your plan falls a little short of a standard or goes a little over, you can ask for an exception for your property only, without changing the rule itself. That is a minor variance.

The decision is made by the Committee of Adjustment, which city council sets up. Under section 44 of the Planning Act it has at least three members, and section 45 sets out its powers and process.

If you want to change the use itself or build much bigger, that is not "minor". You need a rezoning (a zoning by-law amendment), and in Toronto City Council makes the final decision.

The tests — often called the "four tests"

Section 45 (1) of the Planning Act lets the Committee approve only after it weighs all of the following. In practice these are often called the "four tests".

• Is the variance really minor?
• Is it desirable for the appropriate development or use of the land or building?
• Is the general intent and purpose of the zoning by-law maintained?
• Is the general intent and purpose of the Official Plan maintained?

It must also meet any criteria set by the province or by a city by-law (section 45 (1.0.1)). Criteria that were not in force on the day you applied do not apply.

Compared with building as-of-right

Toronto’s Committee of Adjustment also handles dividing land or adjusting lot lines (consents) and extending legal non-conforming uses.

Step by step

1. Prepare: use your drawings and a zoning review to list which rules you miss and by how much. The owner, or someone the owner authorizes in writing, applies.
2. Apply: submit the City’s form, drawings and fee. The Act says the hearing must be held within 30 days after the secretary-treasurer receives the application. Ask the Committee for the actual schedule.
3. Notice: before the hearing, the Committee gives notice in the way the regulations set, to the people and public bodies they name.
4. Public hearing: the applicant and anyone for or against can speak. Toronto holds hearings both in person and online.
5. Decision: a majority of the members who heard it must agree, and the decision is in writing with reasons. Within 10 days a copy goes to the applicant and others, with the last day to appeal.
6. Appeal period: if no appeal is filed within 20 days, the decision is final. Then you apply for the building permit.

Conditions and title — they can bind the next owner

The Committee can set a time limit and conditions (section 45 (9)), for example "build only as shown in the submitted drawings" or "protect the tree".

It can also require the owner to sign an agreement with the City about the conditions, and that agreement may be registered on title. A registered agreement can be enforced against every later owner (section 45 (9.2)). So if your lawyer’s title search shows such an agreement when you buy, read it carefully.

Who can appeal?

Appeals go to the Ontario Land Tribunal (OLT). A notice of appeal with reasons and the Tribunal’s fee must be filed with the Committee within 20 days of the decision. Decisions of Toronto’s Committee of Adjustment are appealed to the Toronto Local Appeal Body (TLAB), not the OLT (City of Toronto). Check the TLAB’s steps and fees on its own pages.

Since November 28, 2022, only the applicant, the Minister, a specified person (such as an electricity or gas utility or a railway company) and public bodies can appeal. Neighbours can speak at the hearing, but unless they are on that list they cannot appeal.

The Tribunal can dismiss the appeal or make any decision the Committee could have made.

When will you run into one?

• Additions, decks, garages: when a rear setback or the height is slightly off the standard.
• Garden suites and laneway suites: when the size or spacing is slightly short. Toronto says that if a plan does not meet the zoning rules, you may need a minor variance before a building permit is issued. For garden suites, Toronto says fire access rules cannot be changed by a minor variance.
• Multiplex conversions: Toronto gives the example that features allowed only because of the provincial regulation (O. Reg. 462/24) can become shortfalls needing a variance once a fourth unit is added.
• With a severance: if a new lot will be slightly short on width or area, owners sometimes apply for the consent and a minor variance together.

What to check when buying

• Past variances on the property: in Toronto you can search Committee of Adjustment decisions by area. Read the decision, its conditions and any registered agreement.
• Open applications: if the seller has applied for a variance, check the result and whether the appeal period has ended.
• Ads that say "addition possible with a variance": approval is not guaranteed. The Committee approves only if all four tests are met. Price that risk into your offer.
• Work done without a permit: a variance does not make past work legal by itself. Check building permit records separately.

Example