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Guide to Changes to the Development Charges Act, 1997

This summary highlights some of the key changes to the Development Charges Act, 1997 as outlined in Schedule 3 of Bill 108. A stated goal of the Provincial Government in introducing these proposed changes is to make housing more affordable and increase the housing supply by lowering and providing certainty about municipal costs and development charges imposed on construction. There is also consideration to providing developers of cost sensitive projects, such as rental and non-profit housing, with an increased certainty of costs and relief with respect to timing of payment of development charges.

Three of the central proposed changes revolve around

• The types of services to be included in development charges
• The timing for payment of development charges for certain types of development, and
• The timing for when the amount of a development charge is determined.

Selected Key Changes

Eligible Service

• A significant change proposed is the repeal of subsection 2(4) of the Act which specified, through regulation, services which were ineligible for development charges. If a service was not enumerated, a municipality could impose a development charge.
• A new subsection 2(4) is proposed which instead specifically enumerates those services for which a development charge can be imposed. If a service is not in this list, no development charge can be charged for it. Soft services for which development charges were traditionally imposed by municipalities, like recreation, library, paramedics and general government, are not enumerated, and therefore, unless prescribed under regulation, will no longer be subject to development charges. However, these services may ultimately be included in the new Community Benefit By-law contemplated under the Planning Act

Elimination of 10% Reduction

• The Bill proposes the elimination of the 10% reduction generally applied to the capital costs of soft services. This 10% reduction is no longer available for waste diversion services for which development charges continue to be exigible.

When a development charge is payable

• The Bill introduces a scheme to defer the payment of development charges for rental housing development, institutional development, industrial development, commercial development, and non-profit housing development until the earlier of the date of the issuance of a permit under the Building Code Act, 1992 authorizing occupation of the building, and the date the building is first occupied where no occupancy permit is required.
• The charge would be payable in six equal annual instalments. Interest may be payable in respect of these payments at a prescribed rate.
• A related amendment is made to Section 52 of the Act applicable to the forgoing types of development which provides that the obligations for payment by a non-party of development charges pursuant to a front-ending agreement are subject to the same rules regarding timing of payment and other obligation in section 26.1.

When the amount of a development charge is determined

• Another key change relates to when a development charge is determined if an early or late payment agreement is not entered into.
• The new proposed section provides for development charge rates to be frozen at an earlier point in time (subject to the payment of interest) including, for example, when an application is made for site plan approval under section 41 of the Planning Act.
• If site plan control does not apply to an application, the relevant date for freezing of the rate payable is the date of an application for an amendment to a zoning by-law under section 34 of the Planning Act.
• IF both applications are made for a development, the relevant date is the later of the two applications.
• In the event that neither of the above applications are made, or a specified period of time has elapsed since the approval of a relevant application, the amount would continue to be determined in accordance with section 26 of the Act, which holds that a development charge is payable based on the applicable rate upon issuance of a building permit unless a development charge by-law (or an agreement for early or late payment) provides otherwise.
• These sections apply only to applications made after Bill 108 is enacted.

Second Units

• In an effort to encourage the development of additional units in existing structures, new provisions are introduced which would exempt development charges for additional units in certain prescribed existing residential buildings or ancillary structures to existing homes, in the creation of a second dwelling unit in certain new buildings and ancillary structures and the conversion of communal areas to residential units in rental buildings.
• The classification of residential buildings and structures, along with relevant restrictions to this application, will be prescribed in regulation.

Transitional Matters for Development Charges for Soft Services

• A development charge by-law that would expire on or after May 2, 2019 but before a date to be prescribed in regulations will remain in force in relation to soft services generally (all services not set out in section 5(5) as is currently in force) until the earlier of:
  • the day the by-law is repealed,
  • the day a Community Benefits By-law is enacted, and
  • a prescribed date.
• For by-laws which are currently in effect governing soft services, the Act contains provisions requiring that the by-law will be deemed expired in relation to the soft services, on the earlier of the passage of a Community Benefits By-law, and a prescribed date.
• Until such time, the existing development charge by-law continues to apply to development charges which will no longer permitted to be charged under the new legislation.

The changes proposed to the Development Charges Act, 1997 must be reviewed alongside the changes to the Planning Act introduced in Bill 108, and in particular, those provisions relating to the proposed new community benefits authority and the treatment of development charges for discounted soft services. These are described more fully in our guide the changes to the Planning Act.

It is noted that the Province is accommodating further consultation on the proposed changes to the Development Charges Act, 1997, and feedback may be submitted through the Environmental Registry of Ontario, between May 2^nd 2019 and June 1^st 2019.

A more detailed summary of the key changes is found below:

Please check our 2019 Planning Reform page and other blog posts for more details on Bill 108.

Guide to Changes to the Education Act

­This summary highlights the key changes to the Education Act as proposed by Schedule 4 of Bill 108. An explicit aim as set out in the preamble of the Bill is to allow school boards and development partners to find innovative ways to finance new schools. Two new mechanisms of particular significance are introduced by the Bill and outlined below.

Selected Key Changes

Alternative Projects

• A key change proposed involves the introduction of provisions allowing a school board to request the allocation of revenue from education development charge by-laws for alternative projects. These are projects that would encourage pupil accommodation and reduce the cost of acquiring land. The Board must make this request before an education development charge by-law is passed.
• The Minister must approve of this request and a school board would be required to provide detailed plans and continual updated information surrounding the project.
• This section would come into force on the later of November 1, 2019 and the day the More Homes, More Choice Act, 2019 receives Royal Assent.

Localized Education Development Agreements

• Another notable introduction is that of a localized education development agreement between a school board and land owner. In exchange for providing a school board with real property, a lease, or other benefit to be used to provide pupil accommodation, a school board would agree not impose education development charges against land that would otherwise be subject to the charge. This agreement must be entered into before an education development charge by-law is passed.
• This arrangement would require the consideration and approval of the Minister and may be subject to prescribed criteria.
• These proposed changes to the Education Act are scheduled to come into force on the later of November 1, 2019 and the day the More Homes, More Choice Act, 2019 receives Royal Assent.

Acquisition, Leasing or expropriation of Land

• A Board’s power to acquire, lease or expropriate land has been extended from a right to purchase, lease or acquire a school site to include any other land that is within its area of jurisdiction pursuant to amendments to section 195 of the Education Act.
• The Schedule also introduces a requirement in section 195 for a school board to provide the Minister with notice of intent to acquire or expropriate land. The Minister would have the authority to reject a school board’s plans.
• These proposed changes to the Education Act are scheduled to come into force on the day the More Homes, More Choice Act, 2019 receives Royal Assent.

A more detailed summary of the key changes is found below:

Sections 195 and 257.70(2) shall come into force on the day the More Homes, More Choice Act, 2019 receives Royal Assent. The balance of the sections shall come into force on the later of November 1, 2019 and the day the More Homes, More Choice Act, 2019 receives Royal Assent.

Please check our 2019 Planning Reform page and other blog posts for more details on Bill 108.

Guide to Changes to Conservation and Environmental Protections and Assessments

 The following is an outline of the key changes that are proposed to four environment-related statutes, which aims to highlight the main changes that will affect the land use planning process.

Note that the Conservation Authorities Act and Endangered Species Act, 2007 are proposed to fall under the purview of the Minister of the Environment, Conservation and Parks, moved from the Minister of Natural Resources and Forestry.

Endangered Species Act, 2007

1. Creation of the Species at Risk Conservation Fund and a Crown Agency to administer the Fund.

• The Minister of the Environment, Conservation and Parks may designate species listed on the Species at Risk in Ontario List as “conservation fund species”. The purpose of the Fund is to provide funding for activities that are “reasonably likely to protect or recover conservation fund species or support their protection or recovery.”

• Payments out of the Fund may be made to a person who wishes to carry out an activity that is consistent with the purpose of the Fund and is reasonably likely to contribute to reversing the decline, abating, or increasing the population or distribution of a conservation fund species. The criteria for Fund recipients will be elaborated in the regulations and guidelines to be written by the Ministry.

• The amount of the species conservation charge, which is a charge payable to the Agency for the purpose of carrying out the objectives of the Fund, shall be prescribed by the regulations.

2. Activities that damage or cause destruction to a habitat may be authorized and mitigated through a Landscape Agreement

• A new concept of “Landscape Agreements” is introduced to authorize activities that would otherwise be prohibited under ss. 9 and 10, including activities that would damage or destroy the habitat of a species at risk.

 Landscape Agreements are between the proponent and Minister, which the Minister may enter into, as long as the criteria in the Act are met.

 Among other criteria, the Landscape Agreement must identify “beneficial actions” that the authorized party will undertake to assist with the protection or recovery one or more species contained in the agreement (the “benefiting species”). 

• The benefiting species is not required to be the impacted species in the agreement. However, other criteria include that at least one of the benefiting species must be an impacted species and the beneficial actions must outweigh the adverse effects on the impacted species, among others. 

• The Landscape Agreement may require that the authorized party pay a species conservation charge if the impacted species is a conservation fund species.

3. The permit regime has not changed substantially

• The amendments revise some of the criteria that the Minister must consider before issuing a permit, which mainly provide for the condition of paying a species conservation charge.

• The main difference between the permit regime and Landscape Agreements is that the latter is not subject to certain criteria, such as whether the activity is necessary to protect human health and safety or whether the activity will result in significant social or economic benefit to Ontario. Nevertheless, further criteria for Landscape Agreements may be introduced by regulations.

• Further, Landscape Agreements introduce a new concept of evaluating the benefits to the beneficial species against adverse effects on the impacted species, which is not a feature in the permit regime.

4. The Minister may take more time to consider or reconsider a recommendation by the Committee on the Status of Species at Risk in Ontario (“COSSARO”).

• When considering whether to list a species as endangered or threatened, COSSARO must consider the condition of the species outside Ontario. If the species is experiencing low level risk to survival when considering the wider geographic range, this shall be reflected in how the species is classified.

• The Minister will have flexibility to reconsider the committee’s recommendations to the Species at Risk in Ontario List and the Minister is proposed to have 12 months’ time to add said species to the regulations.

• For new species, the Minister may temporarily suspend some or all of the prohibitions associated with protecting said species for up to 3 years. 

Most of the proposed changes to the Endangered Species Act, 2007 are proposed to come into force on July 1, 2019.

Conservation Authorities Act 

1. Narrowing of the programs that Conservation Authorities may administer.

• A Conservation Authority shall provide a program or service contained in the regulations and that relates to the risk of natural hazards, the conservation and management of lands owned or operated by the authority, and the authority’s duties, functions and responsibilities under the Clean Water Act, 2006 or otherwise prescribed in the regulations.

• The Conservation Authority may provide programs and services that it determines are advisable to further its objectives; however, financing said programs is restricted based on the proposed amendments.

2. Conservation Authorities may be investigated.

• The Minister may appoint one or more investigators to conduct an investigation of an authority’s operations, including the programs and services it provides. The investigator may require the production of records, conduct a financial audit, and require a member of an authority to give evidence under oath, among others.

These amendments are proposed to come into force on a day to be named by proclamation.

Environmental Protection Act

1. Expanded regime for administrative penalties.

• The scope of contraventions that may be subject to an administrative penalty is widened to effectively include the contravention of any provision of the Act or its regulations, which would not otherwise be subject to an environmental penalty.

• The maximum monetary amount for an administrative penalty is increased to $200,000 (from $100,000) for each contravention.

These amendments are proposed to come into force on a day to be named by proclamation.

Environmental Assessment Act 

1. Class environmental assessments exemptions.

• A class environmental assessment may provide that this Act does not apply with respect to one or more undertakings within the class. Further, there are specific exemptions when certain criteria are met for the enumerated class environmental assessments provided in the Act.

• The Minister may amend an approved class environmental assessment.

• Where the Minister or the Tribunal reconsiders an approval of a proponent’s class environmental assessment, that approval may be amended or revoked

2. Limits on when the Minister may issue an order under Part II of the

• The Minister may only issue an order on the grounds that it will prevent, mitigate or remedy adverse impacts on existing aboriginal and treaty rights or a prescribed matter of provincial importance, and the Minister must do so within the prescribed deadlines.

The majority of these amendments are proposed to come into force on a day the More Homes, More Choices Act, 2019 receives royal assent, and the remaining provisions will come into force on a day to be named by proclamation.

Please check our 2019 Planning Reform page and other blog posts for more details on Bill 108.

Ontario Regulation 988/19 was filed on May 2, 2019. It amends various definitions in the Ontario Building Code as well as sections of Division B.

Please find our guide to the important changes here .

If you have any questions regarding the Ontario Building Code, please contact one of our municipal, planning and land development lawyers.

The new Growth Plan for the Greater Golden Horseshoe, 2019 takes effect on May 16^th, 2019. It will replace the Growth Plan for the Greater Golden Horseshoe, 2017.

Please find our guide to the important changes here.

If you have any questions regarding the new Growth Plan, please contact one of our municipal, planning and land development lawyers.

Bill 108 has passed the first reading and amends 13 pieces of legislation including:

• The Planning Act,
• Local Planning Appeal Tribunal Act,
• Ontario Heritage Act,
• and the Development Charges Act.

Click this link to see the act: https://www.ola.org/sites/default/files/node-files/bill/document/pdf/2019/2019-05/b108_e.pdf

Please check our 2019 Planning Reform page and other blog posts for more details on Bill 108.

MAJOR ANNOUNCEMENT: PROVINCIAL GOVERNMENT INTRODUCES HOUSING SUPPLY ACTION PLAN
On May 2, 2019, the Minister of Municipal Affairs and Housing announced its “More Homes, More Choice: Ontario’s Housing Supply Action Plan”, which will involve sweeping legislative changes to the land use planning and appeal process.
View the government news release here: https://news.ontario.ca/mma/en/2019/05/ontarios-government-for-the-people-to-make-home-ownership-affordable-for-more-ontario-families.html
View the Housing Supply Action Plan here: https://files.ontario.ca/mmah-housing-supply-action-plan-en-2019-05-02.pdf
View the Greater Golden Horseshoe Growth Plan here:  https://www.ontario.ca/document/place-grow-growth-plan-greater-golden-horseshoe   or here for a PDF version
View the Backgrounder here, which outlines the various statutes that are proposed to be amended: https://news.ontario.ca/mma/en/2019/05/comprehensive-legislation-would-help-give-people-of-ontario-more-homes-more-choice.html

Stay tuned!

On Friday February 22, 2018, Davies Howe Partner Meaghan McDermid presented to a packed house at the Urban Land Institute’s event “Game Changers: Understanding the Impact of Growth Plan Reforms and Changes Ahead”. Meaghan and land use planner Emma West of Bousfields Inc. provided attendees with an overview of the significant reforms proposed by the Province in Amendment 1 to the Growth Plan for the Greater Golden Horseshoe, 2017, followed by an insightful discussion from the expert panel about the potential impact of the proposed changes and the challenges still left to be met.

For more information, contact Ms. McDermid or any one of our Land Development lawyers.

Proposed Amendments to the Growth Plan were released January 15, 2019. The commenting period on the Amendments is open until February 28, 2019. There are a number of important changes to take note of found in the Our Guide to Changes in the link below . Our top five are:

1. Flexibility to Add Uses to Employment Lands Before a Municipal Comprehensive Review: Lands within Employment Areas may be converted to a designation that permits non-employment uses in advance of a municipal comprehensive review, provided that there is:
   1. A need,
   2. No adverse effects on the viability of an Employment Area or achievement of minimum intensification and density targets,
   3. There are existing or planned infrastructure and public services in place, and,
   4. A significant amount of jobs are maintained.

However, certain lands will be designated Provincially Significant Employment Zones which can only be converted through a municipal comprehensive review. A list of the proposed employment zones is found in the overview of changes produced by the Ontario Growth Secretariat found in the link below.

2. Settlement Area Changes in Advance of an MCR:

Adjustments -Settlement Area Boundaries may be adjusted by municipalities without an MCR when:

1. There would be no net increase in land within the settlement area,
2. The adjustment would support the ability to meet intensification and density targets,
3. The normally applicable requirements for a settlement area expansion found in policy 2.2.8.3 are met,
4. The land is not a rural settlement or in the Greenbelt, and,
5. The land is serviced and there is sufficient reserve

Expansions – Settlement Area Boundaries may be expanded without an MCR when:

1. The lands will meet the resident and jobs density targets or the employment area density targets established pursuant to the Growth Plan,
2. The normally applicable requirements for a settlement area expansion in policy 2.2.8.3 are met,
3. The land is not a rural settlement or in the Greenbelt,
4. The land is serviced and there is sufficient reserve capacity,
5. The land, accompanying growth, will be fully accounted for in the next Municipal Comprehensive Review, and,
6. The land proposed to be expanded is no greater than 40 hectares.

The opportunity make minor rounding out adjustments to rural settlements has also been added.

3. Support for Transit Oriented Development:  Upper- and single-tier municipalities may delineate the boundaries of major transit stations areas and identify minimum density targets for these areas ahead of a Municipal Comprehensive Review, provided Planning Act requirements regarding official plan policies for these areas are met. The areas affected by these policies is proposed to be expanded to a 500 –  800 metre radius from the Transit Station.

4. Scaled Intensification and Density Targets: Targets for Delineated Built-up Areas and Designated Greenfield Areas now scaled to the degree of urbanization of a municipality. The blanket intensification requirement that 60% of all residential development occur within the Delineated Built-up Area now ranges from 60% to 50% for more urbanized areas with a requirement that existing targets be maintained or improved for less urbanized areas. For Designated Greenfield Areas, the density target of 80 residents and jobs per hectare has been replaced with a range of 60 to 50 for more urbanized areas, and a minimum of 40 in less urbanized areas.

5. Natural Heritage System and Agricultural System Mapping: Provincial Natural Heritage System and Agricultural System mapping does not apply until implemented in an applicable Upper Tier or Single Tier Official Plan and a municipality may refine the provincial mapping before incorporating it into their plan. Until then, existing Official Plan mapping applies.

The following resources may assist those looking for further information.

• The Davies Howe Guide to the Changes. Click here
• The Davies Howe Redline of the Growth Plan, for reference purposes.  Click here
• Overview of changes produced by the Ontario Growth Secretariat, hosted by BILD.  Click here
• The Draft Original Amended Growth Plan.  Click here 
• The Environmental Registry Posting.  Click here
• Governmental News Release.  Click here
• Government Backgrounder.  Click here

Kimberly Beckman and Aaron Platt will be speaking at the OBA’s February 7^th Real Property Law Section meeting on Commercial Real Estate Transactions

Kim and Aaron will discuss due diligence issues that arise in multi-tenant property transaction including reliance on surveys, zoning reliance letters, cost sharing agreements and future development concerns.  They will also address the pitfalls when trying to close a deal in the face of a planning-related issue.

For more details please visit the OBA website

https://www.oba.org/CBAMediaLibrary/cba_on/pdf/Institute2019/19RPR0207C.pdf