ARTICLE
18 April 2024

Shifting Sands – Ontario Proposes More Changes To The Land Use Planning Framework Through Bill 185

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On April 10, 2024, the Province of Ontario introduced the Cutting Red Tape to Build More Homes Act, 2024, which proposes a number of amendments...
Canada Real Estate and Construction
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On April 10, 2024, the Province of Ontario introduced the Cutting Red Tape to Build More Homes Act, 2024, which proposes a number of amendments to the Planning Act  and related legislation that would, if enacted, bring yet further changes to a land use planning system that has been in a near-constant state of flux for almost 6 years.

Among other things, the legislation, known as Bill 185, would prohibit appeals of official plan and zoning amendments (including municipally-initiated amendments), eliminate the fee refund regime the Province brought into effect in 2023, and eliminate certain development charge (DC) discounts introduced in 2022.

The key proposed changes are described in more detail below.

Removal of Appeal Rights for Official Plan and Zoning Matters

Perhaps the most significant proposed legislative change is a broadly framed prohibition on appeals of official plan and zoning amendments. The legislation as proposed would limit the right to appeal the approval of official plan and zoning by-laws to public bodies, the Minister of Municipal Affairs and Housing (the "Minister"), and a list of specified persons that primarily consists of infrastructure providers, such as utility companies, railways and telecommunications companies. Importantly, as currently drafted, this prohibition on appeals would prohibit landowners from appealing municipally-initiated official plan and zoning amendments – a feature of the Bill which is likely to concern developers.

Applicants would still have the right to appeal official plan and zoning amendment applications that council refuses or does not consider within the statutory time periods. However, if council approves the application, only the narrow list of entities outlined above would have a right to appeal. 

The Province proposed nearly identical amendments in 2022. However, the amendments were modified before enactment so that they only applied to minor variance, consent and subdivision applications. The proposal to prohibit appeals of official plan and zoning matters has now reappeared in Bill 185, with far-reaching implications.

The proposed elimination of third party appeals of planning applications could give developers that file applications more confidence to work with the municipality to obtain an approval through council, rather than appealing to the Ontario Land Tribunal (the "Tribunal") for delay, with the comfort of knowing that a council decision to approve an application would not then be subject to appeal by neighbours or others, provided they are not on the list of specified persons and public bodies.

However, Bill 185 would also give municipalities the power to change the planning permissions for a parcel of land through official plan or zoning amendments, with no opportunity for an affected landowner to appeal council's decision to the Tribunal.

The changes to appeal rights for official plan and zoning matters would have retroactive effect. The legislation would deem all appeals already filed to have been dismissed if a hearing on the merits had not been scheduled as of April 10, 2024 (the day Bill 185 was first introduced), unless an entity that continues to have a right of appeal had filed an appeal.

New Appeal Rights for Applicants Seeking Changes to Settlement Area Boundaries

Where an applicant seeks to alter any part of the boundary of a settlement area, the Planning Act  currently provides that the municipality's refusal or failure to adopt the requested amendment within 120 days is not subject to appeal. Bill 185 would permit such appeals, as long as the boundary alteration does not result in including any land in the Greenbelt within the settlement area.

Elimination of Fee Refund Regime and Changes to Pre-Application Processes

In July of 2023, amendments to the Planning Act  were brought into effect that required municipalities to refund application fees for zoning and site plan applications if a decision on the application was not made within a specified period of time. These provisions led municipalities to establish new pre-application requirements and other processes with a view to avoiding refunding fees. Less than a year after the refund regime took effect, the Province is proposing to eliminate it, as the relevant provisions of the Planning Act  and the City of Toronto Act, 2006  are proposed to be repealed.

In addition, Bill 185 would remove municipalities' authority to require applicants to consult with the municipality before submitting an official plan amendment, rezoning or site plan application. Such pre-application meetings would be voluntary.

If an applicant chooses to consult the municipality before submitting an application, the Bill provides that motions to the Tribunal to address disputes regarding complete application requirements could be made any time after such consultation has begun, removing existing time constraints for those motions. Similarly, where an applicant chooses to make an application without consulting with the municipality first, a complete application motion could be brought any time after an application fee is paid.

DCs: Elimination of Phase-In Discounts and Reinstatement of Certain Eligible DC Costs

In 2022, the Province introduced mandatory phase-in discounts for DCs, with DCs otherwise payable reduced by 20% the first year a DC by-law is in force, 15% for the second year, 10% for the third year, and 5% for the fourth year. These discounts are proposed to be eliminated. In municipalities such as the City of Toronto, which passed a development charge by-law between January 1, 2022 and November 28, 2022, the phase-in discounts would continue to apply to those projects for which a site plan application was made (or, if site plan approval is not required, where a rezoning application was made) between November 28, 2022 and the day the relevant Bill 185 provisions come into effect.

Where DCs are frozen based on rates in effect at the time a site plan application is made, those rates currently remain frozen provided a building permit is obtained within two years of final site plan approval. That time period is proposed to be shortened to 18 months.

Prohibition on Parking Minimums in Major Transit Station Areas

Bill 185 would prohibit official plan policies and zoning provisions that have the effect of requiring vehicular parking on land that is within a protected major transit station area (PMTSA) or delineated areas around higher-order transit with policies requiring minimum densities in order to conform or be consistent with provincial policy. Existing policies and by-laws that require vehicular parking in these areas would also be of no effect, which could have significant implications for municipalities that have maintained parking minimums to date.

Applications to Amend Land Uses within PMTSAs

Where an official plan delineates a PMTSA, the Planning Act  currently prohibits the making of applications seeking to amend policies regarding minimum densities and the authorized uses of land within the PMTSA (except through permission from council). Bill 185 proposes to amend those provisions to permit applications to amend policies regarding the authorized uses of land within PMTSAs.

Lapsing of Approvals and Servicing Allocation By-laws

Bill 185 includes certain amendments intended to incentivize projects with approvals to proceed to construction. For example:

  • Subdivision approvals.  Whereas the Planning Act  currently permits (but does not require) municipalities to provide that draft plan of subdivision approvals lapse after a certain period of time, Bill 185 would require municipalities to include such lapsing provisions, with the time period being no less than three years unless otherwise set out in regulation. Notably, the Growth Plan for the Greater Golden Horseshoe already requires such lapsing provisions, so this change may have little impact in much of the Province.
    • Bill 185 also specifies that draft plan of subdivisions approved on or before March 27, 1995 lapse on the third anniversary of the day the relevant provision of Bill 185 takes effect.
  • Site plan approvals. Bill 185 would permit municipalities to provide that site plan approval lapses after a certain period of time from approval, with the time period being no less than three years unless otherwise set out in regulation. 

The Bill also provides municipalities with a new power to adopt a policy regarding the allocation of water and sewage capacity. Such a policy may include criteria used to determine how capacity will be allocated and when allocation would be withdrawn. While some municipalities already use a similar approach through reports to council, Bill 185 would provide statutory authority for allocation decisions to be guided by policy. Decisions under the allocation policy are to be assigned to municipal staff and are proposed to be final and not subject to appeal to the Tribunal.

Eliminating "CIHA" Orders and a New Framework for Ministerial Zoning Orders (MZOs)

Bill 185 proposes to repeal provisions of the Planning Act  introduced in 2022 that permitted the Minister to issue an order granting zoning permissions, at the request of a municipality, known as a Community Infrastructure and Housing Accelerator (or CIHA) order. Instead, the Province has published a MZO "framework" that sets out a process and criteria to be used by the Minister in considering requests for MZOs, which require that a proposed MZO either have municipal support, or deliver on a provincial priority (e.g. long-term care, hospitals, transit-oriented communities, educational facilities, housing priorities, economic development, manufacturing, etc.).

Exempting Public Universities from the Planning Act and Potential Regulations Exempting Community Facilities

Bill 185 would exempt publicly-assisted universities from the Planning Act (and the site plan control provision of the City of Toronto Act, 2006) in respect of undertakings that are for the object of the institution. This amendment could expedite the development of student housing and other university buildings.

The Bill also includes a new power for the Minister to make regulations that exempt certain school facilities, long-term care homes and hospitals from the Planning Act.

Building Code Changes: 18-Storey Mass Timber and More

On the same date it introduced Bill 185, the Province also released a new edition of the Ontario Building Code, which increases the maximum height of mass timber buildings from 12-storeys to 18-storeys and includes a series of other changes. The Province also announced it will be consulting on potentially permitting single-stair buildings.

Next Steps

Bill 185 received second reading the day after it was introduced and is expected to proceed through the legislative process swiftly, with enactment anticipated before the legislature recesses for the summer in 2024. We will continue to monitor the legislation as the legislative process unfolds. In the meantime, for more information, please contact any member of our Municipal and Land Development Group.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

ARTICLE
18 April 2024

Shifting Sands – Ontario Proposes More Changes To The Land Use Planning Framework Through Bill 185

Canada Real Estate and Construction

Contributor

Goodmans LLP logo
Goodmans is internationally recognized as one of Canada’s pre-eminent business law firms. Based in Toronto, the firm has market-leading expertise in M&A, corporate and transaction finance, private equity, real estate, tax, restructuring, litigation, intellectual property and other business-related specialties.
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