Bill 229, An Act to implement Budget measures and to enact, amend and repeal various statutes, was introduced on November 5, 2020 pursuant to the Protect, Support and Recover from COVID-19 Act (Budget Measures), 2020. Bill 229 received Royal Assent on December 8, 2020. The bill made changes to the Conservation Authorities Act (the Act) and the Planning Act, among others. Although the bill only makes minor changes to the Planning Act, the changes to the Act will significantly impact the land use planning regime. In particular, the changes affect an applicant's appeal rights for development permits and impose decision-making timelines on Conservation Authorities (CA), while also limiting the role of the CAs in the municipal planning process.
Developers and interested parties that interact with permitting applications should re-evaluate applications that involve CAs, as applications may now be submitted to another party for approval, or alternatively may be appealed to the Ontario Land Tribunal (the Tribunal).
Re-delegation of Conservation Authorities' powers & the appeal process
Bill 229's amendments change the activities that CAs normally engage in based on their mandate, role and function. The purpose is to improve transparency and consistency in CAs operations, strengthen municipal and provincial oversight, and streamline CAs roles in relation to land use planning and development. The amendments do not remove the mandate of CAs over watershed management, but rather create new appeal rights and increase existing ones.
One of the major changes implemented through Bill 229 is to section 28 of the Act, which grants the Minister authority to determine permit applications in place of the CA. These amendments essentially "streamline" these responsibilities through authorizing the Minister to order or decide an application for a permit under the Act. Previously, landowners were required to obtain permission from the governing CA for proposed development on properties located in the regulated areas or where the type of proposed development itself is regulated. The CA then had the authority to refuse or grant permission (with or without conditions). These decisions previously had a limited right of appeal to the Mining and Lands Tribunal.
Now, an applicant can appeal to the Minister of Natural Resources and Forestry (the Minister), within 30 days of receiving the reasons, where the permission is refused or the applicant objects to certain conditions. The Minister may then either refuse the permission or grant the permission, with or without conditions. Where the Minister intends to conduct a review, the Minister must publish a notice of intention on the Environmental Registry within 30 days of giving a reply.
The new amendments also significantly broaden the jurisdiction of the Tribunal. Applicants will be able to appeal permit fees charged by a CA directly to the Tribunal (pursuant to section 21.2(14), which will be brought into force on a date to be proclaimed). Applicants may appeal the refusal to conduct a review, the non-decision of the Minister or the cancellation of a permit, directly to the Tribunal within 90 days, or may appeal a CAs' decisions under section 28.0.1 (also to come into force on a day to be proclaimed), within 120 days. The Tribunal will be required to hold a hearing, on notice to all interested parties, upon receiving notice of an appeal.
The amendments provide landowners with additional avenues and more flexibility to challenge the outcome of a section 28 permit applications. The new amendments present a permit applicant with two choices: to deal with a potentially contested hearing before the Tribunal, or request a review from the Minister at the risk of forgoing any further appeal rights.
Mandatory permits
Bill 229 introduced mandatory permits, meaning that certain permit applications are required to be issued, if the applicant meets the enumerated criteria. This applies to applications submitted to CAs for permission to carry out development where a Minister's Zoning Order has been issued, the lands are not located in the Greenbelt Area and such other requirements, as prescribed, are satisfied. Such applications are required to be approved by the CA, so long as each of the criteria is met.
Sections 28.0.1(6) – (18) provides that a CA cannot attach conditions to a mandatory permit unless the applicant has an opportunity to be heard by the authority. Additionally, within 15 days of the decision, a permit holder may submit a request to the Minister for review of the proposed conditions. The Minister may then confirm, vary or remove the conditions altogether, or take any other action that the Minister sees fit. Alternatively, the permit holder may, within 90 days of the decision, appeal to the Tribunal to review the conditions, in place of the Minister. The Tribunal may also vary, remove or add to the conditions, as it deems appropriate.
Ministerial ordered permits
Bill 229 introduces section 28.1.1, which allows the Minister to order a CA to not issue a permit or a class of permits based on a specified activity, or type/class of activity. The Minister may then issue the permit(s), if certain criteria are met. After making an order, the Minister must give notice to certain parties and post it on the Environmental Registry within 30 days. The Minister's decision is final. Where the Minister fails to make a decision within 90 days, the non-decision may be appealed to the Tribunal.
Appeals of municipal levies
Previously, the Act provided that certain municipal levy appeals were heard before the Tribunal and others before the Mining and Lands Tribunal. The use of two separate tribunals to hear appeals raised concerns regarding consistency. The amendments, once proclaimed into force, will expand the Tribunal's jurisdiction to hear CA matters, including all municipal levy appeals.
Conservation Authorities & Planning Act appeals
The Planning Act amendments, once proclaimed, will exclude CAs from the definition of "public body." This means that a CA is no longer permitted to appeal a municipal council's decision to the Tribunal or be a party to an appeal before the Tribunal. CAs will only be able to participate in Tribunal appeals where they have been called on by the municipality or province to provide advice or support or if the appeal falls under one of two listed exceptions in section 1(4.1) of the Act.
However, s. 1(4.1) lists two exceptions to the above, specifically where:
- An appeal made under or at issue in one of those provisions in paragraph 1 of subsection 17 (24), paragraph 1 of subsection 17 (36), and subsection 17 (44.1), 22 (7.4), 34 (19) and (24.1), 38 (4.1), 45 (12), 51 (39), (43), (48) and (52.1) and 53 (19) and (27) relates to a prescribed natural hazard risk; or
- In the case of an appeal made under subsection 53(19) or (27), the CA was the applicant for consent in the matter under appeal.
In the two exceptions above, CAs are permitted to appeal a decision to the Tribunal or to be a party to an appeal before the Tribunal. Additionally, where a CA was a party to an appeal that was commenced prior to the sections being proclaimed by the Lieutenant Governor, the CA may continue as a party to that appeal until the final disposition of the appeal.
Composition of boards
Bill 229 also amends the composition of CA boards by requiring that at least 70 percent of CA appointees be selected from among the members of the respective councils of the participating municipalities. Where a municipality wishes to select less than 70 percent of their appointees from members of the municipal council, they must obtain permission from the Minister.
Dentons will continue to assess the outcome and impacts of the amendments to the Act.
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