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LPAT Case Management Conferences: The Rules of the Road take Shape - Part I (Tests for Adding Parties/Participants to Appeals)

Apr 24, 2019


Introduction

The Local Planning Appeal Tribunal (the “Tribunal”) released its decision arising from the mandatory Case Management Conference (“CMC”) in CAMPP Windsor Essex Residents Association v Windsor (City) on 16 April 2019. The CMC took place on 20 March 2019. A copy of the decision is available here.

There are three key takeaways from the Tribunal’s decision:

  • The test to be added as a party/participant to an appeal before the Tribunal is distinct from the grounds required to have a valid appeal.
  • The Tribunal does not have jurisdiction to consider written submissions from persons seeking party or participant status with respect to an appeal governed by s. 38(1) of the LPAT Act if the submissions are filed after the statutory deadline (i.e. 30 days before the CMC).
  • It is helpful to the Tribunal if the parties to an appeal prepare a draft consolidated issues list in advance of the CMC.

Each of these takeaways provide guidance to persons who have an interest in appeals under the post-Bill 139 amendments to the Planning Act and is worthy of individual consideration. As such, we will publish a separate blog post for each in the coming weeks.

Appeal Background

Windsor Regional Hospital (“WRH”) plans to develop a new regional hospital to be located at County Road 42 and Concession 9 (south of the Windsor Airport). To facilitate the development of the new hospital, WRH applied for an official plan amendment to implement a secondary plan (County Road 42 Secondary Plan) and zoning by-law amendment (“ZBA”). The City of Windsor (the “City”) adopted Official Plan Amendment 120 (“OPA 120”) to implement the secondary plan and enacted a ZBA.

Three persons appealed the City’s adoption of OPA 120 to the LPAT pursuant to s. 17(36) of the Planning Act. One person appealed the City’s passing of the ZBA pursuant to s. 34(19). As a result, there were four statutory parties to the OPA 120 appeal (the City and three appellants) and two statutory parties to the ZBA appeal (the City and one appellant).

Section 39 of the Local Planning Appeal Tribunal Act, 2017 (the “LPAT Act”) requires the Tribunal to hold a case management conference in the case of appeals under s. 17(36) and s. 34(19). The Tribunal convened the mandatory case management conference in this appeal on 20 March 2019.

In this case, WRH was the applicant who sought the OPA and ZBA. However, under the LPAT Act, the only persons who are statutory parties to an appeal of an adopted OPA and enacted ZBA are the municipality, the appellants and an approval authority, where applicable. As a result, WRH was required to make a request for party status in order to participate in the appeal.

Key Takeaway #1: The Test for Granting  Status to an Appeal is Different from the Test of a Valid Appeal

Grounds for Appeal

In the case of adopted official plans, s. 17(24.0.1) of the Planning Act provides that an appeal can only be made on the basis that the part of the decision to which the notice of appeal relates:

(a) is inconsistent with a policy statement issued under s. 3(1) of the Planning Act;,

(b) fails to conform  with or conflicts with a provincial plan or,

(c) in the case of the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality’s official plan.

Subsection 34(19.0.1) imposes a similar threshold with respect to appeals of enacted zoning by-laws.

Grounds for Party or Participant Status

Pursuant to s. 40(1) of the LPAT Act, if a person who is not the municipality, approval authority or appellant wishes to participate as a party or participant in an appeal, the person must make a written submission to the Tribunal respecting whether the decision or failure to make a decision:

(a) was inconsistent with a policy statement issued under s. 3(1) of the Planning Act;

(b) fails to conform with or conflicts with a provincial plan; or

(c) fails to conform with an applicable official plan.

In addition, Rule 26.19 of the Tribunal’s Rules of Practice and Procedure requires an applicant for status to “explain the nature of their interest in the matter and how their participation will assist the Tribunal in determining the issues in the proceeding”.

In its written submission requesting party status, WRH argued that the OPA and ZBA were consistent with the PPS. CAMPP challenged WRH’s request for party status on the basis that the written submission for party status must address inconsistency with the Provincial Policy Statement, 2014 (the “PPS”), and not consistency with the PPS.

The Tribunal found that CAMPP’s interpretation of s. 40(1) ignored the implicit language of the subsection, which is that a written submission must be made respecting whether or not the decision under appeal is inconsistent with the PPS. The Tribunal noted that:

To restrict a potential party to a position of inconsistency with the PPS is akin to imposing a basis for appeal on that potential party.

Please refer to the Wood Bull Blog Post Bill 139 - Adding Parties and Participants to LPAT Appeals for additional analysis with respect to requests for party and participant status in advance of mandatory case management conferences.

Wood Bull LLP has put together links to Bill 139 resources and background here.

Wood Bull LLP has also launched The Wood Bull Guides, a free on-line resource with emphasis on the changes introduced by Bill 139 related to the following:

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Author(s): Dennis Wood / Lee English

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