Canada: Ontario’s Bill 51 Likely to Increase Municipal Control Over Land-Use Planning

Would Put Pressure on Involved Parties to Act Quickly, Decisively

On December 12, 2005, Bill 51, which would amend Ontario’s Planning Act and Conservation Land Act, was given first reading by the province’s Legislative Assembly. The intention of the bill is to improve the land-use planning regime in Ontario by:

• Increasing the transparency and accessibility of the land-use planning process;

• Reforming the Ontario Municipal Board (OMB); and

• Supporting intensification and the development of sustainable, well-designed communities.

The following discussion highlights some of the more significant changes under each of these three themes. Our conclusion—set out in more detail below—is that the new regime will likely increase in municipal control over land-use planning in Ontario, while increasing pressure on parties involved in the process to act quickly and decisively when facing a planning issue.

From a legal perspective, this means that the decisions of municipal councils are to be given far more authority than in the past. On one hand, this change will increase the importance of decisions by democratically elected councils in the planning process. On the other hand, it also increases the chances for planning applications to suffer at the hand of "NIMBY" trends among stakeholders and ratepayers, where councils are unduly sensitive to these voices.

If the legislation is passed, planning decisions and comments by public authorities on planning applications, including those issued by municipal planning committees and departments, will need to be "consistent with" provincial policy statements in force on the date of the decision or comment. Similarly, these planning decisions or comments must "conform", or at least "not conflict", with provincial plans in force on the date of the decision or comment. Examples of provincial plans are the Niagara Escarpment Plan, the Oak Ridges Moraine Conservation Plan, the Greenbelt Plan and growth plans under the Places to Grow Act, 2005.

This signals a departure from the OMB’s longstanding practice of basing its decisions on the policy framework in place at the time of the application. The potential consequences are drastic: an applicant could submit an application which conformed with current policy, only to be rejected when the Province subsequently changed the policy.

This sends a clear message that municipal governments and the OMB are to consider such factors when making any planning decision.

If the legislation passes, municipalities would be able to permit or require applicants to consult with them prior to the submission of a planning application. In addition, municipalities would be able to require information to be made available through public open houses. This would encourage developers to learn the sensitivities of a municipality before submitting a planning application.

An example would be the provision of site servicing analysis. It should also be noted that the waiting time before an applicant may appeal to the OMB as of right will not begin to run until all the required materials have been provided.

• They would be given directions as to the types of matters that must be addressed in official plans;

• They would be required to update their official plans every five years and maintain conformity to provincial plans and be consistent with provincial policy statements;

• They would be required to update their zoning by-laws within three years of completing a new or revising an existing official plan;

• During the development (or redevelopment) of an official plan, municipalities will now be required to increase the level of public consultation; and

• They would be required to give notice within 15 days of refusing an official plan or zoning by-law amendment application. (Unfortunately for potential appellants, Bill 51 would also cut the time to appeal such a decision to 20 days.)

For better or worse, this change will import a degree of democratic consideration into future decisions of the OMB. Further, the Province has determined that there is a need to reduce the number and duration of appeals. Thus the OMB would be permitted to dismiss an appeal of an official plan, zoning by-law, Minister’s zoning order, plan of subdivision, variance or consent (including a severance) where an appellant has "persistently and without reasonable ground" commenced proceedings before it that are an "abuse of process".

This reform would effectively require that applicants provide municipalities with all potentially relevant materials at the initial application stage. This will leave many applicants in the position of having to prepare all reports and materials that could possibly be required on appeal before discovering what aspects of a proposed application may be contentious.

There is an exception to this rule. Bill 51 allows the OMB to admit new evidence on an appeal that could not reasonably have been provided to the municipality before its council made its decision. In such cases, the OMB must first notify the council (or other approval authority) so that it can make a recommendation to the OMB in response if it wishes.

Most disconcerting is the fact that the restriction on producing new information will not apply to public bodies. Therefore, while a private party could not bring new evidence to an OMB hearing, a municipality or the Province (or another public body) would, as of right, be able to produce new evidence on appeal. This appears to be unduly biased towards municipalities.

In its current form, Bill 51 would deny a party the right to appeal a municipally-initiated or adopted official plan (or zoning by-law amendment), a plan of subdivision or subdivision conditions unless it had made oral submissions at the relevant public meeting or had provided the municipal council with written submissions. Furthermore, Bill 51 would limit party status in appeals before the OMB of official plan amendments, municipally adopted zoning by-law amendments, plans of subdivision or subdivision conditions to only those parties who had taken part in the approval process at the local level (again, through either oral or written submissions).

Of course, where the OMB found that a person or organization could not have reasonably participated in the local approval process, it would have the discretion to permit that party to participate in the appeal.

It should be stressed that the above-noted restrictions apply only to private parties. Public bodies will retain their pre-Bill 51 appeal privileges and may be added as parties without having to have participated at earlier stages.

LABs would be designed to hear appeals that are deemed to be purely of local significance, for example, minor variance and severance applications. The Ministry has stated that the purpose of the LABs would be to alleviate the need for the OMB to deal with issues such as disputes over additions, decks and lot creation. Bill 51 would make the Province responsible for establishing minimum criteria for LABs, as well as their processes and standards, while giving the power to appoint LAB members to municipal councils.

While the creation of LABs seems like a good idea, we suspect that, given the current financial state of most municipalities in Ontario, few will have the capacity to create and operate them. Therefore, it is likely that the OMB will continue to be responsible for hearing most, if not all, land-use planning appeals.

For example, at the site plan stage, municipalities will now have the right to regulate the minimum and maximum density and height of a development. Municipalities will also have the authority to consider the exterior design of buildings, including the character, scale, appearance and design features of buildings. However, this authority is only available where policies addressing exterior design are included in that municipality’s official plan.

They would be permitted to shape the design, layout and servicing of proposals for new subdivisions so that energy conservation is promoted. This power would also effectively allow municipalities to require dedications to a proposed subdivision’s walkways, bicycle paths, transit passages and roadways. Examples of conditions that a municipality might choose to impose are green roofs, solar panels, designs that improve water conservation and preservation of existing vegetation.

This additional power would, for example, allow a municipality to set conditions relating to energy efficiency or brownfields clean-up prior to approving a zoning application. In essence, municipalities would gain the power to address the often unique issues arising from plans calling for redevelopment or intensification of existing development.

This power is further strengthened by a statutory prohibition on appeals of such decisions unless the conversion application is made at the time when the municipality is undergoing a comprehensive review of its official plan. Unfortunately, Bill 51 does not provide clarification as to how, or whether, this change will affect those areas that are designated for "mixed" uses that include employment uses.

This will increase Ontario municipalities’ ability to encourage or stimulate community improvement activities (for example, brownfield redevelopment) that support the goal of intensification.

It is important to note that Bill 51 has only received first reading. While the Ministry has advised that it is targeting enactment within 6-8 months, comments are still being accepted on the current version of the Bill. As there has been considerable concern from the various stakeholders, we will be watching carefully for amendments at second and third reading.

Whatever changes might be made, two things appear to be certain at this stage:

• The voices of Ontario’s municipalities in land-use planning decisions are about to become dramatically more powerful; and

• There will be a drastic reduction in the time available for parties to make their land use planning decisions.

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.