Canada: Proposed Land-Use Planning And Ontario Municipal Board Reform Creates Uncertainty

On December 12, 2005, the Ontario Government unveiled its most recent land-use planning initiative, tabling Bill 51, the Planning and Conservation Land Statute Law Amendment Act, 2005. According to the Ontario Government, Bill 51 is intended to “provide clearer rules and a more effective process for the public, local councils and others involved in planning our communities. They would also give local residents and community leaders more opportunity to play an important role in community planning and development.” Whether Bill 51 will facilitate these goals or have a long-term adverse impact on land-use planning in Ontario remains to be seen. What is certain is that if Bill 51 is passed, it will significantly change the Ontario land-use planning process. Currently at First Reading, Bill 51 has profound implications for Ontario land-use planning – municipal councils will have more power while the Ontario Municipal Board (OMB) will have a more circumscribed role in processing and approving development applications.

If you are, or will be, an Ontario property owner, property developer or property manager, you will be interested in the following summary of several Bill 51 provisions.

Enhanced Deference to Provincial Planning Policies

Although many of the proposed reforms increase municipal power and control over development applications, these new powers are to be exercised within an enhanced provincial policy framework. Specifically:

  • municipal planning decisions and comments “shall be consistent” with provincial policy statements in effect on the date of decision and “shall conform to provincial plans in effect on that date”;

  • municipalities are required to revise their official plans every five years to ensure that these conform to, and do not conflict with, provincial plans and policies, and zoning by-laws are to be amended no later than three years thereafter; and

  • in preparing official plans, municipalities must ensure that appropriate approval authorities and prescribed public bodies are consulted in the preparation of the plan and given the opportunity to review all supporting information and material. Regulations may be made to specify additional matters to be included in official plans.

Increased Municipal Authority, Control and Deference Over Development

Municipalities will enjoy greater power and control over development applications, and their decisions will now receive deference in the context of any appeals to the OMB. Specifically:

  • the OMB “shall have regard” to any decision by a municipal council or approval authority and to any supporting information and material that municipal council considered in making its decision;

  • consultation with municipalities concerning development applications is permissive, but mandatory where the municipality has enacted the necessary by-law;

  • in considering development applications, municipalities may, subject to official plan policies, require applicants to provide “any other information or material that the council or planning board considers it may need”. If this information is not provided, the time periods in which an applicant can appeal to the OMB would not begin to run, subject to the applicant’s right to bring a motion to the OMB concerning any dispute. In addition, new provisions restrict evidence before the OMB to information and material that was provided to the municipality. This places the onus on applicants to ensure that municipalities have the opportunity to review all material and expert reports in support of development applications; and

  • municipalities meeting prescribed conditions can appoint appeal bodies to hear appeals from minor variance and consent applications that were previously appealed to the OMB.

Restriction on Appeals to the OMB

The right to appeal to the OMB and the scope of appeals have also been restricted. Specifically:

  • persons who did not make oral submissions at a public meeting or written submissions to municipal council concerning development applications are precluded from appealing the municipal council’s decision to the OMB. Similarly, persons other than a public body, who did not make such oral or written submissions, cannot be added as a party to an OMB hearing, unless in the OMB’s opinion “there are reasonable grounds to add the person as a party”;

  • no appeals can be made to the OMB from applications to amend official plans and zoning by-laws that seek to remove land from an “area of employment”, even if other employment lands are proposed to be added;

  • the OMB has no power to approve or modify any part of an official plan that is in effect and was not dealt with in the municipal council’s decision to which a notice of appeal relates;

  • evidence at OMB appeals will be restricted to information and material that was provided to the municipal council before it made a decision, unless the OMB determines that it was “not reasonably possible to provide the information and material to the municipality before the council made its decision” or unless “the information is introduced into evidence by a public body”. However, the evidence shall not be admitted until the OMB has notified the municipality that it is being given the opportunity to reconsider its decision in light of the material and to make a written recommendation to the OMB, which the OMB must consider if received within the prescribed time period; and

  • the OMB has additional powers to summarily dismiss appeals “if the appellant has persistently and without reasonable grounds commenced before the OMB proceedings that constitute an abuse of process.”

New Development Controls

Bill 51 introduces several reforms that will impact development applications requiring zoning by-law amendments, subdivision and site plan approval. Specifically:

  • where official plan policies permit, a municipality may impose conditions of zoning approval, and may require landowners to enter into agreements with the municipality relating to the condition, with these agreements to be registered and enforced against all subsequent owners of the land. The municipalities’ power to regulate minimum and maximum densities and heights in zoning by-laws is also clarified;

  • site plan approvals and agreements can now explicitly consider matters relating to “ exterior design, including without limitation the character, scale, appearance and design features of buildings and their sustainable design”;

  • a municipality may require the payment of money to the value of land to be conveyed in lieu of parkland conveyance, with provisions preventing construction of buildings where payments or arrangements to pay have not been made;

  • plans of subdivision must now meet criteria that consider “the extent to which the plan’s design optimizes the available supply, means of supplying, efficient use and conservation of energy”.

Transitional Provisions

Bill 51 was tabled for First Reading on December 12, 2005. Although several matters are to be prescribed, including transitional provisions, no regulations have been filed. However, regulations may be retroactive to December 12, 2005.

The tabling of Bill 51 has created uncertainty. The proposed deference to municipal councils’ decisions, with more limited recourse to the OMB, has already curtailed or delayed land-use development applications. Whether Bill 51, if enacted, has a long-term adverse impact on land-use planning in Ontario remains to be seen.

Authors credit: Michael Bowman is a partner in Osler’s Litigation Department in Toronto, where he practices municipal law and regulation, land use planning and development, municipal taxation and finance, expropriation, environmental issues, and lease arbitration and litigation. Adrian Hartog is a partner in the firm's Toronto office, where he practises commercial transaction law with an emphasis on acquisition, development, financing, leasing and disposition of real estate. Shelley Munro is a senior associate in the Business Law Department, with a practice concentrated on commercial law, emphasising secured lending, acquisitions, dispositions, insolvency matters and real estate-based transactions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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