There are many situations in which a developer may need to begin
construction before a certain date, but cannot get their building
permit in time. In Ontario that is usually because they cannot yet
meet some very minor "applicable law" requirement that,
according the Building Code Act, they must comply with in
order to obtain the
A conditional building permit can often get around this problem,
even though many municipalities in Ontario use them so infrequently
that they seem barely aware that they have the authority to issue
them. Conditional building permits are authorized pursuant to s.
8(3) of the Building Code Act, and allow an applicant to
proceed with construction even though all "applicable
law" requirements necessary to obtain a building permit have
not yet been met. Instead, there is only a much shorter and less
onerous list of "applicable law" requirements that must
be met.2 Even in larger municipalities conditional
building permits are not always raised as an option to applicants,
even if they could potentially benefit in reduced fees and commence
their construction much sooner.
Some of the more common circumstances in which a conditional
building permit can be useful include:
Beating an upcoming development charge (or other fee) increase,
typically payable upon issuance of the first above-grade building
Where a Record of Site Condition pursuant to the
Environmental Protection Act has not yet been secured and
is expected to delay issuance of the building permit
Where a Committee of Adjustment has approved variances but the
statutory Ontario Municipal Board appeal period has not yet
The conditional building permit agreement that is required
typically sets out the timelines within which the applicant must
comply with the remainder of the "applicable law"
requirements for a building permit, and deals with how and if the
site must be restored should those requirements not be
Using a law firm with experience in securing conditional
building permits can be important. Many Ontario municipalities do
not even have template conditional building permit agreements
ready. This can dramatically slow down the process if the
applicant's law firm also does not have its own precedents and
the agreement has to be drafted from scratch. Some
municipalities' templates are also very one-sided in favour of
the municipality and should be negotiated, not simply signed.
1. Building Code Act, S.O. 1992, c. 23, s. 8(2)
; Building Code, O. Reg. 332/12, Division A, s.
2. Building Code Act, S.O. 1992, c. 23, s. 8(3)
; Building Code, O. Reg. 332/12, Division C, s.
Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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