Canada: Is De Novo The Answer? Land Use Appeal Procedures In Other Jurisdictions

Last Updated: March 21 2017
Article by Christie E. Gibson

Although Ontario is not unique in Canada for having an appeal body to address appeals of land use decisions, no other planning appeal body in Canada has the breadth of power of the Ontario Municipal Board ("OMB"). This broad authority has drawn criticism over the years, in part for its ability to overturn the decisions of elected officials. The Province has responded by once again proposing an overhaul of the institution, the matters that it governs, and the way in which it responds to particular issues.

The Ministry of Municipal Affairs released the Public Consultation Document in October 2016, highlighting the major reforms that have been proposed to the OMB. OBA Municipal Bar Executive member and Technology Liaison Isaac Tang wrote on the major highlights in an article posted on the OBA website on October 12.

A core element of the debate arising from the Province's proposed reform rests on whether the OMB power to hear matters should test the issues as though they were being heard for the first time (a de novo hearing), or whether an administrative review of the governmental body's decision is more appropriate. Many sophisticated planning systems exist in the English-speaking world where de novo is the standard approach on appeal, and they should be looked to to better understand the widespread nature of the de novo system and its roots in a myriad of legal systems, not just Ontario's. This paper offers an overview of the de novo nature courts and tribunals in Ireland, England, New Zealand, Australia, and Scotland.

Proposed Changes in Ontario

In 2015, a new section to the Planning Act changed the burden placed on the OMB and shifted the regime away from a truer de novo system to one where the OMB must "have regard to" decisions made by municipal council or an approval authority relating to the same planning matter. The Province has recommended stakeholders consider an OMB even further removed from the de novo system in its Public Consultation Document, and offers the following explanation:

If this were to occur, it would mean the OMB would focus on the validity of the decision under appeal instead of seeking the "best" decision. The decision of the approval authority (i.e., municipality or the province) would be central to the appeal in a way that it currently is not. This might be achieved in a number of ways, including:

  • requiring the OMB to review municipal/approval authority decisions on a standard of reasonableness. That means OMB hearings would examine whether the original decision was within a range of defensible outcomes within the authority of the municipality/approval authority.  If the decision is found to have been made within that range of outcomes, the OMB would not be able to overturn it
  • authorizing the OMB to overturn a decision made by a municipality/approval authority only if that decision does not follow local or provincial policies. This would mean that the Board would have to be convinced that the planning decision under appeal is contrary to local or provincial policies. Examples might include approvals of proposals for development in a flood prone area or a provincially significant wetland, or an official plan that does not meet the Growth Plan for the Greater Golden Horseshoe intensification targets.

It also suggests that this change would "give more weight to municipal and provincial decisions." Although the Province asks the reader open-ended, neutral questions about moving away from a de novo hearing structure, the simple consideration of the issue in the Public Consultation Document suggests that changes will be forthcoming.  

Other Jurisdictions

A surprising number of jurisdictions within the Commonwealth share some form of a de novo-based hearing structure. Although in some instances it appears one can opt into a de novo hearing or access a de novo structure in certain circumstances, in other instances the de novo structure features a prominent role at the heart of the jurisdiction's planning system.

Ireland

In Ireland, the appeal process is fundamental to the planning system as a whole. Planning authorities' decisions are subject to independent review by the An Bord Pleanála which is a statutory and independent planning appeals body. In general, the board "is required to consider a proposed development afresh".

The An Bord Pleanála is explicit with its mandate: regardless of whether an issue has been raised by the planning authority, so long as it is relevant to the application it will be considered by the board. As such, the board goes a step further than the current Ontario regime in its commitment to de novo hearings.

England

In England, planning appeals are received and decided upon by the Planning Inspectorate, which also hears appeals on a de novo basis. A government guide sets out the intended appeals process before a Planning Inspector acting on behalf of the Secretary of State: 

The appeal will be determined as if the application for permission had been made to the Secretary of State in the first instance. This means that the Inspector (or the Secretary of State) will come to their own view on the merits of the application. The Inspector (or the Secretary of State) will consider the weight to be given to the relevant planning considerations and come to a decision to allow or refuse the appeal. As Inspectors (or the Secretary of State) are making the decision as if for the first time, they may refuse the permission on different grounds to the local planning authority.

England thus shares the same conviction as Ireland about de novo appeals, and appears to integrate the role of the Planning Inspectorate directly into the land use regime.

New Zealand

The Environment Court is a national and appellate court that allows appeals of primarily resource management decisions. Most of what the Environment Court hears involves appeals brought against decisions of local authorities, such as regional and district plans, resource consents, public works and projects, enforcement proceedings, declarations, abatement notices, land use applications, subdivision applications, and coastal, water, and discharge permits.

While the Environment Court is not bound by a council or other decision-making body's decision, it must have regard for the earlier decision, a direct parallel to the current regime in Ontario. The Environment Court considers matters afresh. The Environment Court is thus overtly categorized as a de novo body.

The Environment Court has issued a guide indicating the procedures it usually follows. As the Practice Note 2014 explains:

The Court usually conducts an appeal against a decision on an application for a resource consent or a permit as a completely fresh hearing. In the case of a directly referred application, the hearing will be the first occasion on which the evidence has been heard and been available for challenge by opposing parties. The Court will normally hear first the person who applied for the consent or permit – followed by the parties who support the grant. Then the Court will hear the parties who oppose the grant of the consent or permit.

Although questions about "the role of courts in encouraging institutions and building their capacity to make more sustainable decisions" have been ongoing for at least a decade, the structure of the court has nevertheless remained de novo. As such, the New Zealand Environment Court stands at least in this respect as a direct parallel to the OMB.

Australia

In Australia, planning matters are addressed at a state level. In the state of South Australia, the Environment, Resources and Development Court (the "ERD") deals with disputes and enforcement of laws relating to the development and management of land, the natural resources, and the natural and built environment. To that extent, it may be more representative of the jurisdiction of the Environment and Land Tribunals Ontario as a whole rather than simply the OMB. The ERD also offers de novo hearings, "which means it is a fresh or new look at all the issues in dispute." The otherwise well laid out public awareness material does not offer a lengthier statement along the lines of those offered by the regimes in England and Ireland, but it is clear nonetheless that the ERD is committed to the de novo system with few or no qualifications.

Scotland

In Scotland, an appeal of a land use planning application is made to the Scottish Ministers, and similar to Ontario's regime, it does not involve "rais[ing] any new matters...that had not been available to council when it dealt with the application." As such, the role of the Scottish Ministers is explicitly to keep the land use regime in check from a legal perspective, rather than to play the role of an active participant in the planning process.

The exception to the judicial review nature of the Scottish Ministers is where a matter could not have been raised earlier or if there are exceptional circumstances. A Scottish government guide to the system notes that in the event plans are to be revised or something has changed that could lead the municipality to make a different decision it is worth considering, although not imperative, to submit a new application instead of pursuing an appeal. Parallels can easily be drawn to the current system in Ontario.

Moving Forward

It is undisputed that the purpose of land use planning should be to make improvements in land management rather than cause setbacks for land users. A perfect example of how challenging this broad objective can be when it comes to implementation is in South Africa, where the land use planning system is complicated by the history of apartheid and the context of land use management in different "race zones" which once existed.

The process of establishing an efficient land use planning tool is a large, long-term feat that can be time-consuming and frustrating for land users and municipal planning personnel alike. As the Province moves forward with its proposed OMB reform, we must keep in mind the overarching goals of land use planning infrastructure and the role we wish our own appellate body to play vis-a-vis municipal decision-makers.

That the de novo structure is not uncommon in land use planning regimes across the English-speaking world suggests that any shift away from this system should be measured and well informed. If the Province proposes a more appellate role for the OMB as a result of the consultation, this will signal a shift in the role of players in the land use planning regime. We would caution that if such a change is being heralded the shift be done with careful consideration to the success of administrative appeal regimes elsewhere, and that any shift in responsibility is appropriately responded to by municipalities.

Originally published by the OBA, December 19, 2016

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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