Bill 139 – A Whole New World?
Bill 139 Changes to Planning in Ontario Now In Effect
As of April 3, 2018, Bill 139, Building Better Communities and Conserving Watersheds Act, 2017 is now fully in effect. The Ontario Municipal Board (OMB) is no more, operating now as the Local Planning Appeal Tribunal (LPAT).
The Local Planning Appeal Tribunal Act, 2017 replaces the Ontario Municipal Board Act, and outlines the LPAT’s authority and general jurisdiction. O.Reg. 102/18 provides procedural information on Planning Act appeals, including how time limits for the resolution of appeals are calculated, time limits on oral submissions, and restrictions on witness examinations. O.Reg. 101/18 sets out the transition matters for proceedings that were before the OMB prior to the LPAT’s creation. In general, proceedings commenced prior to April 3, 2018 will continue to be heard in accordance with the Ontario Municipal Board Act.
The transition amending regulation O.Reg. 67/18 includes important new deadlines for the transition of appeal rights and filing of appeals. O. Reg. 67/18 can be found here, while the consolidated transition regulation O.Reg. 174/16 can be found here. The transition provisions are generally in accordance with the government’s draft summary provided in December 2017.
See below for a consolidated set of links to other regulations containing amendments:
• O.Reg. 68/18 – amending O.Reg. 543/06 “Official Plans and Plan Amendments”
• O.Reg. 69/18 – amending O.Reg. 549/06 “Prescribed Time Period – Subsections 17 (44.4), 34 (24.4) and 51 (52.4) of the Act”
• O.Reg. 70/18 – amending O.Reg. 551/06 “Local Appeal Bodies”
• O.Reg. 71/18 – amending O.Reg. 200/96 “Minor Variance Applications”
• O.Reg. 72/18 – amending O.Reg. 197/96 “Consent Applications”
• O.Reg. 73/18 – amending O.Reg. 545/06 “Zoning By-Laws, Holding By-Laws and Interim Control By-Laws”
• O.Reg. 74/18 – amending O.Reg. 544/06 “Plans of Subdivision”
• O.Reg. 75/18 – amending O.Reg. 173/16 “Community Planning Permits”
Summary of the Bill 139 Planning Act Transition Regulation
The transition regulation for the Planning Act includes important new deadlines for the transition of appeal rights and filing of appeals. The transition amending regulation O.Reg. 67/18 can be found here, while the consolidated transition regulation O.Reg. 174/16 can be found here. The transition is generally in accordance with the government’s draft summary provided in December 2017. The key timelines are as follows:
1. Bill 139 prohibits applications to amend a secondary plan within two years of the secondary plan coming into effect. The regulation provides that requests to amend a secondary plan that came into effect prior to April 3, 2018 may be made until April 3, 2020 (s. 14).
2. Bill 139 provides that there is no appeal of a decision of an approval authority to approve/modify and approve/refuse an OP or an OPA pursuant to s. 17(34) where the approval authority is the Minister. The regulation provides that an appeal right exists if the notice of decision was given before April 3, 2018 (s. 15).
3. Interim control by-laws and Minister’s orders are transitioned if
(a) the Interim control by-law is passed before April 3, 2018; and
(b) a request to refer the Minister’s order is made prior to April 3, 2018 (ss. 16 and s. 17).
4. If a by-law adopting an OP, OPA, or repealing an OP/OPA, that is subject to approval, was passed prior to December 12, 2017, a non-decision appeal may be made within 180 days after receipt from the approval authority rather than 210 days if the by-law was passed after December 12, 2017 but before April 3, 2018 (s. 18(1) and (2)).
5. Non-decision OPA appeals under s. 22(7) may be made within 180 days if the request to amend was made before December 12, 2017. If the request was made after December 12, 2017, the non-decision appeal right is triggered after 210 days. The same applies to non-decision zoning by-law amendment appeals, but the timeline is 120 days vs. 150 days (s. 18(3)-(6)).
6. For appeals under s. 17(24) (of a decision on an OP or OPA that is exempt from approval) and s. 17(36) (decision by an approval authority), the appeal is transitioned under the old rules if the notice of decision was given before April 3, 2018, unless:
a) The appeal is in respect of an OPA request under s. 22 received after December 12, 2017; or
b) The appeal is in respect of an OPA adopted after December 12, 2017 that was not a request under s. 22; or
c) the appeal is in respect of an official plan, or a repeal of an official plan, adopted after December 12, 2017. (s. 19 and s. 20)
7. If an appeal has been made as described in 6. a) and b) above, the Tribunal will give the appellant 20 days to file a new appeal in accordance with the new appeal requirements, failing which the appeal will be dismissed (s. 19(6) and s. 20(6)).
8. For appeals under s. 22(7) of a refusal of a request for an OPA, the appeal is transitioned if the notice of refusal is given before April 3, 2018, unless the OPA request was received after December 12, 2017. As in 6. a) and b) above, where an appeal has been filed after December 12, 2017, the Tribunal will give the appellant an opportunity to file a new appeal (s. 21).
9. Appeals filed under s. 22(7) for non-decision on an OPA are transitioned if the appeal is filed before April 3, 2018 (s. 22). This means that any non-decision appeal of an OPA application filed prior to December 12, 2017 but less than 180 days before April 3, 2018 will not be transitioned.
10. Items 6-9 above also apply to ZBLA appeals (s. 23-25).
11. Appeals under s. 17(40) for non-decision on an OP/OPA by an approval authority are transitioned if they are filed before April 3, 2018 (s. 26)
Province Moves on Bill 139 Implementation
On March 5, 2018 the Province released the transition regulations for Planning Act matters. Until now, only a draft summary has been available. A copy of the regulation can be found here: https://www.ontario.ca/laws/regulation/r18067.Regulations under the Local Planning Appeal Tribunal Act, 2017 are anticipated to be finalized shortly. The Ministry of the Attorney-General is the lead for those proposed regulations.
Early this month the Province released a news bulletin indicating that:
• The change from the Ontario Municipal Board to the Local Planning Appeal Tribunal will be effective April 3, 2018; and,
• The draft procedures governing the Local Planning Appeal Tribunal had been released for public comment.
Full details of the new release can be found here: http://elto.gov.on.ca/proposed-rules-and-effective-date-for-lpat/
We will post a summary of the proposed Planning Act transition regulations and procedural changes soon.
Bill 139 – A Whole New World?
The Building Better Communities and Conserving Watersheds Act, 2017 (“Bill 139”) received Royal Assent on December 12, 2017. This means that Bill 139 is in force. However, the substantial amendments contained in the Schedules to Bill 139 which impact the future processing of Planning Act applications will not come into force until a day to be named by proclamation by the Lieutenant Governor of Ontario. Current indications are that the Proclamation Date will occur after the rules and regulations governing the new appeals tribunal are complete, anticipated in the spring of 2018.
The most substantial changes in the new legislation relate to the Planning Act approval and appeal process, including the enactment of the Local Planning Appeal Tribunal Act, 2017 (the “LPAT Act”) and significant changes to the Planning Act. The amendments will repeal the Ontario Municipal Board Act and continue the Ontario Municipal Board (the “OMB”) under the name of the Local Planning Appeal Tribunal (the “LPAT’’). Changes to other legislation including the Conservation Authorities Act, were also incorporated in this Bill.
While many question marks remain, one thing is clear: Bill 139 will change Ontario’s land use planning system as we know it.
Bill 139 contains substantive limits on rights of appeal from municipal decisions on Official Plans and Zoning By-law amendments (“OPAs and ZBLAs”) and significant procedural changes to the planning appeals process. The appeal grounds for applications for site plan, plans of subdivision, consents and minor variances remain unchanged.
Prior to the enactment of Bill 139, the grounds for appeal for Official Plans and zoning by-laws have been broad and fairly easy to satisfy. Appeals are filed with the municipality or approval authority and then forwarded to the OMB for a Hearing de novo; in other words, the OMB could consider all the evidence independently. The OMB was not limited to determining if the original decision was wrong or unreasonable. Their mandate was to determine if the proposed plan represented good planning and met all policy tests.
The LPAT’s role in assessing proposed OPAs and ZBLAs is much more restricted and is based on very limited grounds for appeal.
For appeals of a municipally adopted or approved Official Plan or OPA, and zoning by-law passed by a municipality, the only basis upon which an appeal can be filed is by showing that the part of the Official Plan which is of concern to the appellant is inconsistent with provincial policy statements or fails to conform with or conflicts with a provincial plan, or fails to conform with the applicable upper tier plan.
For appeals of privately initiated applications for OPAs and appeals of refusals of zoning by-laws, appellants have to demonstrate both:
- How the existing Official Plan or zoning by-law is inconsistent with provincial policy statements, fails to conform with or is in conflict with a provincial plan, or fails to conform with the upper tier Official Plan; and,
- How the requested Official Plan achieves consistency and conformity with the provincial policies and plans and the upper tier Official Plan, as applicable.
Thus, the grounds of appeal are very limited and no longer allow for the very broad “good planning” grounds previously permitted. As indicated above, the conformity test requires an applicant to establish that the existing parts of the Official Plan or zoning by-law are inconsistent with and fail to conform to relevant provincial policy and plans. Unless an Official Plan has yet to undergo a conformity exercise, it will be difficult for an applicant to satisfy this part of the test. These grounds may be easier to satisfy for ZBLA appeals, where, as in many cases, municipal zoning by-laws have not been updated to bring them into conformity with more recent OPAs.
In addition, the appeal periods for non-decision have been extended. For OPAs and ZBLAs accompanying OPAs the new period would be 210 days. For standalone ZBLAs, the time has been extended to 150 days.
There are also circumstances where appeals are no longer permitted. For example, where a municipality has included policies in its Official Plans identifying major transit station areas and providing for use, height and density policies in these areas, these policies will no longer be appealable, nor could these policies be amended by private application without permission of the municipality.
Furthermore, where the Minister of Municipal Affairs and Housing is the approval authority of an Official Plan or OPA, there will be no ability to appeal the Minister’s decision to approve the document, even if substantially modified from the plan adopted by the municipality. Municipalities are also precluded from appealing in this circumstance. This restriction is particularly significant in the context of municipal comprehensive reviews. Under Bill 139, only the upper tier or single tier municipality can undertake a municipal comprehensive review, including matters relating to settlement boundary expansions and employment conversions. Because many of these decisions are subject to Ministerial approval, in most cases municipal comprehensive review decisions will not be appealable.
One of the most notable changes going forward is the “two-phase” appeal process which will apply to OPA and ZBLA appeals.
The first-stage of the appeal process is demonstrating to the LPAT that the conformity test referred to above, as applicable, has been met. At this stage, the legislation provides that the LPAT “may”, not “shall”, hold an oral hearing. Even if the appeal proceeds to an oral hearing, parties cannot adduce evidence or call/examine witnesses. Evidence would be based primarily on the written record which was before council when it made its decision. Thus, if an oral hearing is permitted it would be based on this record and oral submissions of the parties. A memorandum from the Ontario government seems to suggest that parties’ oral submissions will be limited to a 75 minute period.
Note that this restriction on adducing evidence and calling witnesses also applies to a non-decision of a subdivision application. Bill 139 is silent on the ability to call witnesses or adduce other evidence with respect to all other planning applications and thus, at this time, the right to do so does not appear to be precluded.
During the first-stage of the appeal process, if the LPAT finds that the conformity test is not met, the appeal does not proceed any further. The appeal is dismissed.
If the LPAT finds that the conformity test is met, the application is returned to Council for an opportunity to make a “second decision”.
If Council makes a decision when the matter returns to it, the applicant can appeal to the LPAT again on the same grounds.
If Council fails to make a decision within the prescribed time frame, the applicant can appeal to the LPAT on any ground.
At this stage, the ability to call evidence and examine witnesses is not specifically precluded under the LPAT Act. However, the Minister has the authority to make regulations governing the practices and procedures of the LPAT and may propose to similarly limit the “second decision” appeals to oral submissions with strict timelines.
In relation to the second appeal, if the LPAT determines that the appellant has met the applicable tests, the LPAT may modify or approve the requested amendment. If the applicable test is not met, the LPAT is required to refuse the appeal.
The hurdles of this new process have led many to choose to file appeals with the OMB prior to the enactment of Bill 139. On December 7, 2017 the Ontario government released proposed transition regulations for public comment on the Environmental Registry. The Regulation proposes that the following appeals are protected and will be subject to the current legislative regime to be dealt with by the OMB:
- Appeals filed before December 12, 2017; and
- Appeals filed before Proclamation (to be determined) if an application is complete before December 12, 2017.
Any applications completed after December 12, 2017, if appealed, are to be dealt with under the new rules and considered by the LPAT. Likewise any appeals filed after Proclamation, will be considered by the LPAT under the new rules.
While the proposed transition Regulations are reassuring for clients with applications in queue with the OMB, there is no guarantee that they will be passed in their current form. Even if they are, the future of planning appeals in Ontario promises to be a whole new world.