** December 2015 Update: The Province passed Bill 73 on 3 December 2015. Click here for updated Wood Bull blog posts.
On 5 March 2105, the Provincial government’s Smart Growth for Our Communities Act, 2015 (the “Amendment”), received first reading in the Legislature. The Amendment proposes changes to the provincial planning framework by amending both the Development Charges Act, 1997 and the Planning Act.
This article provides an overview of some of the more significant changes proposed by the Amendment in relation to the Planning Act. For a comparison table of the Planning Act, with the Amendment, click here.
Decision-making - Reasons
The Amendment would amend Section 2.1 of the Planning Act and require approval authorities and the Ontario Municipal Board (the “Board”) to “have regard” for information and material considered by council or the approval authority in making its decision and expressly includes written and oral submissions from the public. In addition, when the Board makes a decision regarding a matter that is appealed due to a failure to make a decision, the Board would be required to consider the information and material that council or the approval authority received, including written and oral submissions from the public.
The Amendment also imposes new obligations on councils, approving authorities and committees of adjustment, to include a brief explanation in a notice of decision of the effect, if any, that written submissions or oral submissions made at a public meeting had on the decision reached. The obligation applies to decisions regarding official plans, zoning by-laws, minor variances, plans of subdivision and consents.
Extension of Time to Make a Decision
The Amendment provides for one 90 day extension to the current 180 day period giving rise to an appeal from an approval authority’s failure to make a decision with respect to all or part of an official plan.
In the case of an application under Section 22 of the Planning Act, the person or public body requesting the amendment can exercise the right to the extension by giving written notice to the approval authority and in all other cases, the municipality may exercise its right to the extension by giving written notice to the approving authority. The same right to an extension may be exercised by the approval authority, upon written notice to the person, public body or municipality, as the case may be.
Once an extension is in effect, either the party requesting the extension or the party receiving the request may terminate the extension at any time by written notice.
Review of Policy Statements and Official Plans
The current five year review cycle of the policy statements issued under section 3 of the Planning Act has been revised to 10 years after such statement is issued. Similarly, the mandatory five year official plan review has been revised to 10 years with respect to new official plans and every five years thereafter.
All money paid in respect of Section 37 must be paid into a special account and spent only on facilities, services and other matters specified in the Section 37 by-law.
The Amendment would also impose new annual reporting requirements on the municipal treasurer regarding expenditures from the special account, identifying any facilities, services or other matters for which funds from the special account have been spent including details of the amounts spent and the manner in which any capital cost not funded from the special account will be funded. The annual financial report is to be made available to the public.
The Amendment changes the calculation of the payment in lieu (formerly cash in lieu) rate from a maximum of one hectare per 300 dwelling units, to one hectare per 500 dwelling units and deems by-laws that require payment in lieu exceeding this amount to be amended to the maximum stated rate.
However, the new lower rate does not apply if, before the date that the Amendment comes into force, a payment in lieu has been made or arrangements for payment in lieu that are satisfactory to the Council have been made.
In addition, before adopting official plan policies authorizing payment in lieu, as an alternative to providing parkland, the municipality must prepare a parks plan, in consultation with every local school board and any other person or public body deemed appropriate by the municipality.
The Amendment would also impose new annual reporting requirements on the municipal treasurer regarding expenditures from the special account for parkland and such report is to be made available to the public.
Moratoriums on Various Planning Applications
The Amendment provides for moratoriums on planning applications in the following circumstances:
- Following adoption of a new official plan, no person or public body may request an amendment for a two year period following the first day any part of the plan comes into effect;
- Where there is a simultaneous repealing and replacing of all of a municipality’s zoning by-laws, no person or public body may submit an application for an amendment for a two year period; and
- Where a zoning by-law has been amended in response to an application by an owner (or agent authorized in writing), no person or public body may apply for a minor variance from the provisions of the by-law for a two year period following the passing of the by-law, unless Council passes a resolution permitting such application.
1. Certain Appeals Barred
The Amendment bars global appeals of Council’s entire decision to adopt all of a new official plan, but continues to allow appeals relating to part of a decision or part of a plan. In addition, the Amendment bars appeals of any part of an official plan that
(a) identifies an area as being within:
(i) a vulnerable area, as defined in subsection 2(1) of the Clean Water Act, 2006;
(ii) the Lake Simcoe watershed, as defined in section 2 of the Lake Simcoe Protection Act, 2008;
(iii) a specialty crop area, Greenbelt area or Protected Countryside, as defined in subsection 1(1) of the Greenbelt Act, 2005; or
(iv) the Oak Ridges Moraine Conservation Plan Area;
(b) identifies forecasted population and employment growth as set out in a growth plan for the Greater Golden Horseshoe, approved under the Places to Grow Act, 2005;
(c) in the case of a lower-tier municipality’s official plan, identifies forecasted population growth as allocated to the lower-tier in the upper tier municipality’s official plan approved by the Minister; or
(d) in the case of a lower-tier municipality’s official plan, identifies a settlement area boundary, as set out in the upper-tier municipality’s official plan approved by the Minister.
There is also no appeal of an approval authority’s failure to make a decision within 180 days with respect to a lower-tier’s official plan, where the approval authority states that the plan, or any part thereof, fails to conform with the upper-tier’s official plan. The approval authority’s opinion with respect to such non-conformity is not subject to review by the Board and, until such non-conformity is resolved, the 180 day period, after which an appeal lies, does not begin to run.
2. Appeal Deadlines
Where an appeal is filed due to an approval authority’s failure to make a decision with respect to an official plan, the approval authority may give notice of such appeal to:
(i) the Council that adopted the official plan;
(ii) those parties requesting notice;
(iii) each municipality to which the plan would apply if approved; and
(iv) other prescribed persons or public bodies.
Once such notice is given, any additional appeals with respect to the failure to make a decision must be filed within 20 days.
3. Dismissal Without a Hearing
Where an appellant intends to argue that Council’s decision to adopt an official plan is inconsistent with a policy statement, or fails to conform with or conflicts with a provincial plan, or fails to conform with an upper-tier municipality’s official plan, the notice of appeal must explain how the decision is inconsistent or lacks conformity, as the case may be. A similar requirement exists with respect to appeals of a council decision to pass a zoning by-law amendment.
In either case, failure to include the required explanation in the notice of appeal constitutes a ground for dismissal of the appeal without a hearing.
Development Permit Systems
The Amendment would allow the Lieutenant Governor in Council to issue regulations prohibiting:
(i) applications to amend official plan policies regarding a development permit system, for a period of five years after the by-law to adopt such policies is passed; and
(ii) applications to amend a development permit by-law for a period of five years after the date of its passing.
The Amendment also empowers the Minister to require a local municipality to adopt or establish a development permit system or require an upper-tier municipality to pass a by-law requiring a lower-tier municipality to adopt or establish a development permit system.
Alternative Dispute Resolution
The Amendment introduces voluntary mediation and other alternative dispute resolution techniques to resolve certain appeals including those related to adoption and approval of official plans and official plan amendments, zoning by-law amendments, plans of subdivision and consents.
Council, the Minister or the approval authority, as the case may be, may give notice of its intention to use dispute resolution techniques to all appellants but may invite only those appellants, persons or public bodies deemed appropriate to participate. However, in all cases the applicant must be invited to participate, even if not an appellant.
Development Charges Act Comparison Table (Proposed Bill 73 Amendments)
Draft Bill 73, first reading 5 March 2015