The issue of what weight should be given to municipally initiated guideline documents in land use planning approvals has been the subject of significant debate over the years. In the recent decision of the Ontario Municipal Board (the " Board") in Dundas Residence Inc v Toronto (City), Member Sutherland ruled in favour of the abutting landowner, Amexon Development Corporation ("Amexon") in finding that the Dundas Residence Inc. ("DRI") tall building tower must incorporate a 12.5 metre setback to the Amexon south property line in order to achieve a total separation distance of 25 metres between tall towers as contemplated by the City of Toronto Tall Building Design Guidelines, 2013 (the"TBDG")1. DRI filed a Leave to Appeal application of the decision to the Divisional Court on the grounds that the Board erred in law by according inappropriate weight to the TBDG.
The matter was scheduled to be heard by the Divisional Court on February 7, 2016 but has been adjourned to March 10, 2016 to allow the parties to continue "without prejudice" settlement discussions. I had hoped that at the time of writing this paper we would have the Divisional Court's ruling on the leave application, regretfully that is not the case. In the absence of a Divisional Court decision this paper will review the existing jurisprudence that addresses what weight should be accorded to municipal guidelines in the land use planning process and review whether the Dundas Residence Inc. V Toronto (City) decision establishes a different threshold. The main focus of the paper will be with respect to the City of Toronto TBDG.
What are Municipal Guidelines?
Land use planning approvals in the province of Ontario are governed by a policy hierarchy. The statutory framework is set out in the Planning Act2 (the "Act") which requires municipalities and approval authorities to ensure that all land use planning decisions are consistent with provincial statements and conforms with provincial plans such as the Growth Plan and the Provincial Policy Statement. In addition, the Act sets out a rigorous approval process for official plans and zoning by-laws. Municipally initiated guidelines, unless approved as an official plan policy, do not enjoy the same legal status as in force official plan policy or zoning by-laws. As stated by the Associate Chair of the Board, Lee in Toronto (City) By-law No.438-86, Re:
"...guidelines are not part of the Plan unless the Plan has been specifically amended to incorporate them. They simply are not the same as the enshrined Official Plan policies.
They have not been tested by the vigour of the evaluation process pursuant to the Planning Act. As such, they do not enjoy the same legal status of the effective Official Plan or zoning by-law."3
Therefore municipally initiated guidelines that are not part of a municipality's official plan are not policy within the statutory framework of the Act. In fact section 18.104.22.168 of the City of Toronto Official Plan states that guidelines will be adopted to advance the vision, objectives and policies of its official plan and express Council policy, but are not part of the official plan unless the Plan has been specifically amended to incorporate them4. The City of Toronto TBDG are not specifically incorporated in the City of Toronto Official Plan.
If a guideline is not specifically incorporated in a municipality's official plan what role does the guideline play in the municipal approval process? Board Member Rossi in One-Ten Yorkville Ltd., Re, describes the role of guidelines as follows:
"...the Board views guidelines as providing expression to a municipality's way of thinking when it comes to reading municipal policies in the assessment of general planning considerations and development applications widely. Guidelines cannot replace policy nor should they be elevated to the level of policy. They can serve, however, to give weight to policy considerations where they further delineate municipal areas and suggest how development should proceed in these areas."5
In Toronto (City)-law No. 438-86, Re, Associate Chair Lee describes the role of guidelines as follows:
"A punctilious insistence on the requirements of the guidelines without a thoughtful and responsive evaluation, in the Board's view, may have results less than felicitous. Nonetheless, designers and decision-makers such as Council or the Board should have regard for the Guidelines by evaluating their intents and in their applicability, attribute the requisite weight to inform one's opinion. It should be treated as a tool; not a millstone."6
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1a The author gratefully acknowledges the research assistance provided by Lauren Ray, Student-at-law, in the preparation of this paper.
1 Dundas Residences Inc. V Toronto (City) (21 July 2015) PL141461, at paragraph 89, online: Ontario Municipal Board.
2 Planning Act, RSO 1990, c P-13, as amended.
3 Toronto (City) By-law No. 438-86, Re (2014), 25 MPLR (5th) 150, 83 OMBR 109, at 29.
4 Toronto City Planning, City of Toronto Official Plan, June 2015 Consolidation (Toronto: City of Toronto, 2015) at 22.214.171.124. pages 5-14.
5 One-Ten Yorkville Ltd., Re (2014), 82 OMBR 461, at 15.
6 Supra note 3.
Originally published by the Ontario Bar Association
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2016