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Bill 108 Amendments to the Planning Act: Allowing Additional Residential Units on Properties containing Detached Houses, Semi-detached Houses or Rowhouses

Sep 18, 2019

Amendments to the Planning Act and related regulations came into effect on 3 September 2019 respecting additional residential units on properties which contain a detached house, semi-detached house or rowhouse.

The amendments to the Act, once implemented in an official plan and zoning by-law, will result in permitting a second residential unit in a detached house, semi-detached house or rowhouse as well as another residential unit in a building or structure ancillary to the detached house, semi-detached house or rowhouse.

As to whether the additional residential use permission is restricted to existing buildings, O.Reg. 299/19 (discussed in more detail below) provides as follows,

Where the use of additional residential units is authorized, an additional residential unit is permitted regardless of the date of construction of the primary residential unit.

To clarify that there are no relationship restrictions on the nature of the occupancy of the additional units, O. Reg 299/19 provides as follows:

An additional residential unit may be occupied by any person regardless of whether,

     i.  the person who occupies the additional residential unit is related to the person who occupies the primary residential unit, and

    ii.  the person who occupies either the primary or additional residential unit is the owner of the lot.

The amendments made by Bill 108 must be implemented by new official plan policies and zoning by-laws which can be undertaken voluntarily, at any time, by a municipality or during the mandatory updating of official plan policies and zoning by-law amendments required by s.26(1.1) and s.26(9), respectively, of the Planning Act.

Below is a table comparing the Bill 108 amendments to the Planning Act regarding additional residential units with earlier versions of the Act:

Section

Pre-Bill 139

Bill 139

Bill 108

Official Plan, additional residential unit policies - 16(3)

[Underlining added for emphasis]

Without limiting what an official plan is required to or may contain under subsection (1) or (2), an official plan shall contain policies that authorize the use of a second residential unit by authorizing,

An official plan shall contain policies that authorize the use of a second residential unit by authorizing,

An official plan shall contain policies that authorize the use of additional residential units by authorizing,

(a) the use of two residential units in a detached house, semi-detached house or rowhouse if no building or structure ancillary to the detached house, semi-detached house or rowhouse contains a residential unit; and

(a) the use of two residential units in a detached house, semi-detached house or rowhouse if no building or structure ancillary to the detached house, semi-detached house or rowhouse contains a residential unit; and

(a) the use of two residential units in a detached house, semi-detached house or rowhouse; and

(b) the use of a residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse if the detached house, semi-detached house or rowhouse contains a single residential unit.

(b) the use of a residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse if the detached house, semi-detached house or rowhouse contains a single residential unit.

(b) the use of a residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse.

Zoning by-laws - 35.1(1)[By-laws to give effect to second unit policies]

[No changes - added for context]

The council of each local municipality shall ensure that the by-laws passed under section 34 give effect to the policies described in subsection 16 (3).

The council of each local municipality shall ensure that the by-laws passed under section 34 give effect to the policies described in subsection 16 (3).

The council of each local municipality shall ensure that the by-laws passed under section 34 give effect to the policies described in subsection 16 (3).


No Appeals

As noted in the following provisions of the Planning Act, appeals are not permitted from the adoption of additional residential unit policies in an official plan or the enactment of amendments to zoning by-laws to give effect to the official plan policies. Unfortunately, the headings to these provision in the Planning Act were not amended by Bill 108 and still refer to “second unit policies”. There is no legal implication to this as headings in a statute do not have legal force and effect, in particular where there is an obvious error as in this case.

Section

Pre-Bill 139

Bill 139

Bill 108

Official plan, exempt from approval - 17(24.1)[No appeal re second unit policies]

[No changes - added for context]

Despite subsection (24), there is no appeal in respect of the policies described in subsection 16 (3), including, for greater certainty, any requirements or standards that are part of such policies.

Official plan, not exempt from approval - 17(36.1) [No appeal re second unit policies]

[No changes - added for context]

Despite subsection (36), there is no appeal in respect of the policies described in subsection 16 (3), including, for greater certainty, any requirements or standards that are part of such policies.

Zoning by-laws - 34(19.1)[No appeal re second unit policies]

[No changes - added for context] 

Despite subsection (19), there is no appeal in respect of the parts of a by-law that give effect to policies described in subsection 16 (3), including, for greater certainty, no appeal in respect of any requirement or standard relating to such policies.


Regulations Pursuant to s.35.1 (By-laws to give effect to second unit policies) - O. Reg. 299/19 - Additional Residential Units

The provisions of s.35.1 permit the making of regulations by the Minister to facilitate additional residential units and read as follows:

(2) The Minister may make regulations,

(a) authorizing the use of residential units referred to in subsection 16 (3);

(b) establishing requirements and standards with respect to residential units referred to in subsection 16(3). 

(3) A regulation under subsection (2) applies as though it is a by-law passed under section 34.

(4) A regulation under subsection (2) prevails over a by-law passed under section 34 to the extent of any inconsistency, unless the regulation provides otherwise. 

(5) A regulation under subsection (2) may provide that a by-law passed under section 34 prevails over the regulation. 

(6) A regulation under subsection (2) may be general or particular in its application and may be restricted to those municipalities or parts of municipalities set out in the regulation.

O.Reg 299/19 was made pursuant to s. 35.1(2) and provides as follows in regard to the provision of parking spaces for the additional residential units:

  • Each additional residential unit shall have one parking space that is provided and maintained for the sole use of the occupant of the additional residential unit, subject to the following.
  • Where a zoning by-law does not require a parking space to be provided and maintained for the sole use of the occupant of the primary residential unit, a parking space is not required to be provided and maintained for the sole use of the occupant of either additional residential unit.
  • A parking space that is provided and maintained for the sole use of the occupant of an additional residential unit may be a tandem parking space [defined as being a parking space that can only be accessed by passing through another parking space from a street, lane or driveway].
  • A zoning by-law that requires that no parking space be provided and maintained for the sole use of the occupant of one or both additional residential units prevails over the requirements above.

The other provisions included in O. Reg. 299/19 are discussed at the beginning of this blog. O. Reg. 299/19 is available here.

The province released a new innovation guide to assist in the delivery of secondary suites. "Adding a Second Unit in an Existing House" is the first installment being developed to encourage a wider range of options in housing. The innovation guide is available here.

Wood Bull is available to assist you to navigate these amendments to the Planning Act at 416-203-7160 or info@woodbull.ca

Author(s): Dennis Wood / Hanna Hsiao

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