Canada: Government Of Ontario Announces Proposed Changes To The Planning Act

On December 6, 2018, the Government of Ontario announced that Bill 66, Restoring Ontario's Competitiveness Act, 2018, had undergone first reading by the Legislature. If it becomes law, Bill 66 will introduce sweeping amendments to a wide variety of statutes.

Among the most notable changes are those proposed in Schedule 10 of the Bill, which would introduce significant amendments to the Planning Act. This includes a new section, 34.1, which will allow municipalities to create a new type of zoning by-law, called an "Open-for-business planning by-law" ("OFB-ZBL"). An OFB-ZBL, as set out in Bill 66, represents a new zoning power for municipalities.

Forthcoming regulations will provide more detail as to the permitted purposes of an OFB-ZBL. However, based on the description of the draft regulation, it appears that an OFB-ZBL will be permitted where the primary purpose of the by-law is to facilitate new major employment uses.

Bill 66 would permit a municipality to pass an OFB-ZBL following a truncated planning process. An OFB-ZBL will be exempt from many existing Planning Act requirements, as well as land use restrictions set out in various provincial plans and policies. The following sections would not apply to an OFB-ZBL or to development approved pursuant to such a by-law:

  • Section 41 of the Planning Act (section 114 of the City of Toronto Act) – Site plan approval would not be required for development approved pursuant to an OFB-ZBL. However, a municipality may impose any of the site plan conditions listed in subsection 41(7) or 41(8) to an OFB-ZBL
  • Subsection 3(5) of the Planning Act – An OFB-ZBL need not be consistent with policy statements and need not conform with provincial plans
  • Section 24 of the Planning Act – An OFB-ZBL need not conform with an Official Plan
  • Subsection 34( – (34) of the Planning Actinter alia, a person can apply for an amendment to the OFB-ZBL during the two-year period following its passage; an OFB-ZBL cannot be appealed to the LPAT; a municipality is not required to hold public meetings with respect to an OFB-ZBL
  • Subsection 36(1) of the Planning Act – an OFB-ZBL is not affected by a holding provision by-law
  • Section 37 of the Planning Act – bonusing is not permitted with respect to an OFB-ZBL
  • Section 39 of the Clean Water Act, 2006 – an OFB-ZBL need not conform to significant threat policies and designated Great Lakes Policies, or have regard to any other policy set out in a drinking water source protection plan prepared under the Clean Water Act, 2006
  • Section 20 of the Great Lakes Protection Act, 2015 – an OFB-ZBL need not conform to initiatives created under section 11 of the Great Lakes Protection Act, 2015, or have regard to any policies set out in Schedule 1 of the Great Lakes Protection Act, 2015
  • Section 7 of the Greenbelt Act, 2005 – an OFB-ZBL need not conform to the Greenbelt Plan
  • Section 6 of the Lake Simcoe Protection Act, 2008 – an OFB-ZBL need not conform to nor have regard to policies of the Lake Simcoe Protection Plan
  • Subsection 31.1(4) of the Metrolinx Act, 2006 – an OFB-ZBL need not be consistent with designated policies set out in a transportation planning policy statement
  • Section 7 of the Oak Ridges Moraine Conservation Act, 2001 – an OFB-ZBL need not conform with the Oak Ridges Moraine Conservation Plan
  • Section 13 of the Ontario Planning and Development Act, 1994 – where a development plan is in effect, an OFB-ZBL may conflict with the plan. It also appears that where an OFB-ZBL is in effect, public works need not conform with the development plan
  • Subsection 14(1) of the Places to Grow Act, 2005 – an OFB-ZBL need not conform with the Growth Plan
  • Section 12 of the Resource Recovery and Circular Economy Act, 2016 – an OFB-ZBL need not be consistent with applicable policy statements

Relaxed procedural requirements to pass an OFB-ZBL

In order to pass an OFB-ZBL, a municipal council must first pass a resolution requesting that the Minister of Municipal Affairs approve the OFB-ZBL. The Minister has the power to impose conditions on the approval of an OFB-ZBL. The Minister may modify or revoke an OFB-ZBL at any time before it comes into force.

An OFB-ZBL comes into effect 20 days after it is passed, or alternatively, on such later day as may be specified by the Minister. Unlike other zoning by-laws, a municipality is not required to give notice of or hold a public meeting prior to passing an OFB-ZBL. After passing an OFB-ZBL, the municipality must give notice of the OFB-ZBL to the Minister within three days, and to "any persons or public bodies the municipality considers proper" within 30 days.

Further details with respect to the OFB-ZBL power will be provided in the regulations

Details surrounding several key areas of the OFB-ZBL power will depend on forthcoming regulations. In particular, the necessary preconditions that must be satisfied by a municipality who wishes to pass an OFB-ZBL, and the permitted purposes for which an OFB-ZBL may be enacted, may be outlined in the upcoming regulations. Additionally, the regulations may identify further exemptions from additional provincial or local planning controls.

The description of the draft regulation is informative. A municipality's request to use an OFB-ZBL would likely need to be accompanied by information such as a description of the subject lands, land use planning information, and details about the proposed employment opportunity served by the OFB-ZBL. The proposed regulation would also:

  • require confirmation that the proposal is for a new major employment use
  • require evidence that the proposal would meet a minimum job creation threshold (e.g. 50 jobs for municipalities with a population of less than 250,000 people, or 100 jobs for municipalities with a population of more than 250,000 people)
  • identify the uses of land, buildings or structures that may be authorized by the tool, such as manufacturing and research and development, but not residential, commercial or retail as the primary use
  • prescribe how notice is to be given to the Minister of Municipal Affairs and Housing following the passing of an open-for-business by-law (similar to how the Minister is notified following the passing of a zoning by-law – e.g. email and personal service)

The Environmental Register is currently accepting submissions with respect to these regulations. The deadline for submissions to the Environmental Registry with respect to these regulations is January 20, 2019.

Aird & Berlis LLP will be closely monitoring the progress of Bill 66 and the accompanying regulations.

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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