Most amendments to the Planning Act and the Local Planning Appeal Tribunal Act, 2017 (“LPAT Act”) made under Bill 108 came into force on September 3rd, 2019. For a summary of changes made under Bill 108, please visit our 2019 Planning Reform page here.
The remaining amendments to the Planning Act, which include changes to community benefits under s. 37, Ontario Heritage Act, and Development Charges Act, 1997 have yet to come into force.
Reg 174/16, the transition regulation for the Planning Act, includes important new deadlines for the transition of appeal rights and the filing of appeals. The transition amending regulation 296/19 can be found here, while a consolidated redline version of O.Reg. 174/16 can be found here. A summary of the changes can be found here
The transition regulation for the LPAT Act includes infhttp://hereormation pertaining to the continuation of existing appeals under the revised hearing process under Bill 108. A summary of the transition regulation can be found here. The transition regulation 303/19 can be found here.
Davies Howe LLP is bidding a very fond farewell and extending its best wishes to its original founding Partner, Jeff Davies, who has recently announced his retirement from the firm, after 28 years.
Jeff will continue to work independently as an Arbitrator, Strategic Advisor and provider of facilitation services. Since 2015 and up until announcing his retirement, Jeff has worked with Davies Howe LLP as Counsel on select assignments providing strategic advice.
Everyone at Davies Howe wishes Jeff the utmost future success. We salute Jeff for his visionary leadership and contributions to our Firm and the land development community.
On July 25, 2019, Alex Lusty successfully represented the Thunder Woman Healing Lodge Society at a Committee of Adjustment Hearing in Scarborough. The Committee approved minor variances that will enable the development of Ontario’s first Healing Lodge for Indigenous women. The Healing Lodge will provide housing along with a variety of holistic and culturally-relevant programs to aid residents in their healing journey.
The Healing Lodge will contain 12 bedroom units for Indigenous women on bail, probation or parole and actively enrolled in programs. There are also 12 apartment units for women who have successfully completed their programs, but still want to work on refining their life skills, overcoming trauma, and regaining their cultural identity. A range of supportive uses are also provided by the Healing Lodge including, commercial space for entrepreneurial residents.
Davies Howe is proud to have been a part of Thunder Woman’s success and thanks Thunder Woman for sharing their exciting vision with us.
Province Opens Commenting on Proposed New Provincial Policy Statement
The Minister of Municipal Affairs and Housing, Steve Clark, announced that the Province is opening consultation on a new version of the Provincial Policy Statement. The announcement comes shortly after Bill 108, The More Homes, More Choice Act, received Royal Assent and before its Regulations have been filed.
- Encourage the development of an increased mix and supply of housing, for example, by extending the planning horizon from 20 to 25 years (s. 1.1.2) and permitting the adjustment of settlement area boundaries outside of a municipal comprehensive review where certain criteria contained in s. 188.8.131.52 are met;
- Protect the environment and public safety, which includes, promoting the on-site local reuse of excess soil (3.2.3) and continuing to direct development away from natural and human-made hazards;
- Reduce barriers and costs for development and provide greater predictability, by among other things, requiring municipalities to fast track priority applications that support housing and job-related growth (s. 4.7);
- Support rural, northern and Indigenous communities, for example by including language in the nature of clarification around private communal sewage and water services (184.108.40.206), and introducing new language recognizing the unique role that Indigenous communities have in land use planning (Part IV); and,
- Supporting the economy and job creation, for example by requiring planning authorities to identify strategic sites for investment and address potential barriers to investment (s. 1.3.1(c)) while introducing new language designed to strengthen the separation of sensitive and industrial uses (220.127.116.11).
For now, consultation appears to be limited to the submission of written comments. Written comments can be sent in: via e-mail, through the Environmental Registry or by regular mail. Comments are being received until October 21, 2019.
Davies Howe has prepared this Unofficial Comparison of the changes between the PPS, 2014 and the proposed New Provincial Policy Statement to be used for educational purposes only. The Unofficial Comparison should not be relied upon for legal purposes.
Today, Bill 108, More Homes, More Choice Act, 2019 passed third Reading and received Royal Assent. Parts of the Bill are now in force while others await proclamation. The final Bill can be accessed here: https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-108.
For specific advise on how Bill 108 applies to you, please contact one of our Land Development Lawyers.
On Tuesday, May 28 the government’s time-allocation motion for Bill 108 passed after question period. The motion will require Bill 108, which makes sweeping changes to planning and development regulations, to be sent back to the House for third reading debate by next Tuesday, June 4th.
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
- 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.
- These sections apply only to applications made after Bill 108 is enacted.
- 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 2nd 2019 and June 1st 2019.
A more detailed summary of the key changes is found below:
|1||Definition added for “waste diversion services” being services related to waste management but not including landfill sites and services, and facilities and services for the incineration of waste.|
|Exemption of additional dwelling units|
|2(3)||A development charge may not be imposed if the only effect of an action is to permit the enlargement of an existing dwelling unit or permit the creation of additional units as prescribed, subject to prescribed restrictions, in prescribed classes of existing residential buildings or prescribed structures ancillary to existing residential buildings.|
|2(3.1)||The creation of one second dwelling unit in prescribed classes of proposed new residential buildings, including ancillary structures, would be exempt from development charges, subject to restrictions that are to be prescribed in regulation.|
|What services can be charged for|
|2(4)||Introduces enumerated listing of the only services in respect of which a development charge by-law may be imposed to pay for increased capital costs required because of increased needs from growth. These are water supply services (including distribution and treatment services); waste water services (including sewers and treatment services); storm water drainage and control services; services related to a highway as defined in relevant legislation; electrical power services; policing services; fire protection services; Toronto-York subway extension; transit services other than the Toronto-York subway extension; waste diversion services; and other services as prescribed.
|Determination of development charges|
|5(1)||Amends paragraph 4 of this section relating to the determination of development charges. In calculating an increase in the need for service attributable the anticipated development for a service, an estimate is no longer restricted to exclude an increase in the need for service after the 10-year period following the preparation of the background study.
Paragraph 8, stating that certain capital costs must be reduced by 10 per cent, is repealed.
|5(3)||With the deletion of the ability to charge development charges for library services, the ability to include materials acquired by library boards as capital costs has been repealed.|
|5(5)||With the repeal of the 10% reduction in section 5(1), the list of services to which this reduction does not apply is repealed.|
|7(1)||This section relating to categories of services is repealed and amended to delete reference to categorization of services subject to the 10% reduction as it is no longer applicable. The section continues to permit services to be grouped into a category of services.|
|9.1(1)||Adds new section to capture transitional matters for community benefits scheme under Planning Act. Despite the existing five-year expiry timeline in subsection 9(1), a development charge by-law that would expire on or after May 2, 2019 and before the prescribed date shall remain in force with respect to services which are no longer intended to be governed by the Act (essentially soft services) as set out in section 9.1(3) until the earlier of the day it is repealed; the day the municipality passes a community benefits by-law under the Planning Act, as proposed to be amended; or the prescribed date.|
|9.1(2)||Unless it is repealed earlier, a development charge by-law that would expire on or after the prescribed date is deemed to have expired on the earlier of the day the municipality passes a by-law under subsection 37(2) of the Planning Act (community benefits charge by-law) and the prescribed date with respect to services set out in section 9.1(3).|
|9.1(3)||Identifies the services referred to in subsections 9.1(1) and 9.1(2) as all services other than the services set out in subsection 5(5) as that subsection read immediately before the proposed Act receives Royal Assent (i.e. all services other than water supply services(including distribution and treatment services); waste water services (including sewers and treatment services); storm water drainage and control services; services related to a highway as defined in relevant legislation; electrical power services; policing services; fire protection services; Toronto-York subway extension; transit services other than the Toronto-York subway extension and waste diversion services). Note that the new listing of services to which Development Charges are applicable is located in section 2(4).|
|9.1(4)||While the by-law referenced in 9.1(2) is in force, it will apply to services identified in subsection 9.3(3) i.e. services other than those currently listed in section 5(5) and waste diversion services.|
|Collection of Development Charges – Certain types of development, when charge is payable|
|26.1||Adds new section pertaining to when a development charge is payable for certain types of development.|
|26.1(2)||Itemizes these types of development to which this section applies as follows: rental housing development; institutional development; industrial development; commercial development; non-profit housing development.|
|26.1(3)||Outlines that development charges for the types of development identified in section 26.1(2) shall be paid in six equal annual instalments beginning on the earlier of the date of issuance of a building permit authorizing occupation and the date the building is first occupied, and continuing on the following five anniversaries of that date.|
|26.1(4)||The amount of a development charge is determined in accordance with section 26.2, which addresses when an amount of a development charge applicable to a development is determined, even if the relevant by-law is no longer in effect on the date an instalment is payable.|
|26.1(5), (6)||Adds a requirement for a person required to pay a development charge for a development type referred to in section 26.1(2) to notify the municipality within five business days of the building first being occupied where an occupancy permit is not required. If a person fails to provide notice, the total development charge, including any interest payable, is payable immediately.|
|26.1(7)||Allows a municipality to charge interest on the six equal annual instalment payments required by 26.1(3) from the date the development charge would have been payable in accordance with section 26 to the date the instalment is paid, at a rate not exceeding the prescribed maximum interest rate.|
|26.1(8)||Confirms that section 32 of the Act applies to the section 26.1(3) instalments and that any unpaid amounts shall be added to the tax roll.|
|26.1(9)||In the event that any part of a development is changed so that it no longer consists of a type set out in 26.1(2), the development charge and any interest payable but not including any instalments already paid as required by 26.1(3) becomes payable immediately.|
|26.1(10)||Confirms that this section does not apply to a development charge that becomes payable before the day that the applicable provisions in the More Homes, More Choice Act, 2019 come into force.|
|26.1(11)||Provides that section 26.1 shall not apply in cases where there is an agreement for early or late payment under section 27.
|Collection of Development Charges – when amount of development charge is determined|
|26.2 (1)(a)||The total amount of a development charge is the amount that would be determined on the day an application for site plan approval was made.|
|26.2(1)(b)||If the development is not subject to site plan control, the total amount of a development charge payable is the development charge determined on the day an application for a zoning by-law amendment is made.|
|26.2(1)(c)||If neither an application for site plan approval or zoning by-law amendment were made, in the case of a development charge relating to a type of development to which section 26.1 applies, the amount of the development charge is determined as of the day the development charge would be payable determined in accordance with section 26.
In the case of a development charge in respect of a development to which section 26.1 does not apply, the amount of the development charge is determined as of the day the development charge is payable in accordance with section 26 (i.e. upon issuance of a building permit).
|26.2(2)||States that subsection 1 applies regardless of whether the by-law under which the amount of the development charge would be determined is no longer in effect on the date the development charge is payable.|
|26.2(3)||A municipality may charge interest on the development charge at a rate not exceeding the prescribed maximum interest rate from the date of the application to the date the development charge is payable.|
|26.2(4)||If a development is subject to more than one application referred to in clause 26.2(a) or (b), the later one is deemed to be the applicable application for the purpose of determining a development charge.|
|26.2(5)||Clauses 1(a) and 1(b) would not apply in respect of any part of a development to which section 26.1 applies if, on the date the first building permit is issued for the development, more than the prescribed amount of time has elapsed since the application referred to in clause 1(a) or 1(b) was approved. For any part of a development to which section 26.1 does not apply, clauses 1(a) and 1(b) would not apply if on the date the development charge is payable, more than the prescribed amount of time has elapsed since the application referred to in clause 1(a) or (b) was approved.|
|26.2(6)||Clauses 1(a) and 1(b) would not apply in the case of an application made before the day sections 26.1 and 26.2 come into force.|
|26.2(6.1)||Section 26.2 does not apply to development charges that are payable under a development charge by-law that applies in accordance with the transitional provisions introduced in the Planning Act and found in paragraph 3 of subsection 37.1 and paragraph 5 of subsection 51.1(7).|
|26.2(6.2)||The total amount of a development charge for the purposes of subsection 26.2(1) shall not include the amount of a development charge in respect of a service unless the service is set out in subsection 2(4) beginning on the earlier of the day a municipality passes a by-law under subsection 37(2) of the Planning Act (a community benefits charge by-law), or the date prescribed in the transitional provisions of section 9.1.
These changes to section 37 are described more fully in our guide to changes to the Planning Act.
|26.2(7)||Section 26.2 does not apply in cases where there is an agreement under section 27 for early or late payment of a development charge.|
|Interest applicable on amount unpaid|
|32(1)||If a development charge remains unpaid after it is payable, the amount unpaid together with any interest payable in respect of it in accordance with the Development Charges Act shall be added to the tax roll.|
|44(2)||The services to which the work relates must be services that are set out in the new enumerated list contained in subsection 2(4) to which the development charge by-law relates.|
|52 (3.1)||Adds that subsections 26.1(3), (5), (6), and (9) shall govern the payment of development charges involving the types of development listed in subsection 26.1(2) where a relevant front-ending agreement exists that binds non-parties.|
|52 (3.2)||Subsection 3.1 does not apply to an amount that is payable in respect of a front-ending agreement entered into before the day these amendments to section 52 contained in Schedule 3 of the More Homes, More Choices Act, 2019 comes into force.|
|60(1)(b)||The power of the Lieutenant Governor in Council to make regulations is amended to provide for regulations relating to the maximum number of additional dwelling units for buildings in such classes and the prescribing of structures, which was previously not identified. The existing clause limited the number of additional dwelling units to not exceed two.|
|60(1)(c) and (c.1)||The Lieutenant Governor in Council may make regulations clarifying or defining terms in subsection 2(4), being the new section listing services.|
|60(1)(m.5)||Allows for prescribing a date for the purposes of transitional provisions in section 9.1.|
|60(1)(s.1)||Allows for regulations to govern the types of development set out in subsection 26.1(2).|
|60(1)(s.2)||Allows for regulations to prescribe the maximum rate of interest for the purposes of unpaid amounts.|
|60(1)(s.3)||Allows for regulations to prescribe the amount of time for purposes of sections 26.2(5)(a) and (b).|
|60.1||Allows for regulations to set out transitional rules dealing with matters not specifically dealt with in the schedule to the Bill, and to clarify the transitional rules.|
|The definition of Waste Diversion Services, the addition of sections 9.1(1)(2) and (3) relating to transition and associated regulation relating to the prescription of a date, the replacement of “police services” with “policing”, the addition of section 60.1 with respect to transitional regulations and the repeal of Schedule 1 to the Promoting Affordable Housing Act 2016 will come into force when Bill 108 receives Royal Assent. The balance of the schedule will come into force on a date to be proclaimed.|
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
- 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:
|Dealings with Property – Board may purchase or apply to expropriate within its jurisdiction|
|195(1)||Repeals subsection 195(1) and outlines that every school board may select and may acquire, by purchase, lease or otherwise, or may expropriate, a school site or any other land that is within its area of jurisdiction.|
|195(1.1)||Introduces additional requirement for a board to provide the Minister with notice of the intent to acquire by purchase, lease or otherwise, or expropriate, a school site or any other land within its area of jurisdiction. This notice shall be given within the prescribed time period and in a specific manner and form that shall be specified by the Minister by way of a regulation.|
|195 (1.2)||The Minister has authority to reject a board’s plans and prevent the proposed acquisition or expropriation from proceeding.|
|195 (1.3)||If a board is not notified by the Minister that the proposed acquisition or expropriation shall not proceed, the board may proceed with the acquisition or the application to expropriate.|
|195 (1.4)||The Minister may make regulations prescribing the time periods referred to in subsections 195(1.1) and 195 (1.2).|
|257.53(1)||Adds definition for “alternative project” being a project, lease or other prescribed measure approved by the Minister that would address the needs of the board for pupil accommodation and would reduce the cost of acquiring land.|
|Adds definition for “localized education development agreement” being an agreement between a board and an owner further described in subsection 247.53.2(1).|
|257.53.1 (1)||Outlines process for board request, and Minister approval, that an allocation of revenue raised by charges imposed by an education development charge by-law be put towards an alternative project.|
|257.53.1(2)||The Minister must be provided with plans related to the proposed allocation of revenue and information surrounding the project to assist with the Minister’s consideration and approval process. Criteria may be prescribed governing the request.|
|257.53.1(3)||Requires a board to notify the Minister, within the prescribed time period, of any proposed changes to an alternative project or to a proposed allocation of revenue of an approved alternative project and to provide any updated plans and information.|
|Localized Education Development Agreements|
|257.53.2 (1)||Allows a board to enter into a localized education development agreement with an owner of land that provides a lease, real property or other prescribed benefit to be used by the board to provide pupil accommodation in exchange for an agreement not to impose education development charges against such land that would otherwise be subject to the charges under subsection 257.54(1). This agreement must be entered into before the passage of an Education Development Charge By-law.|
|257.53.2(2)||A board would require the Minister’s approval to enter into a localized education development agreement and the board must provide the Minister with the proposed agreement and other relevant information requested by the Minister relating to proposed agreement. The Minister would consider the proposal and must approve of the board entering into the agreement.|
|257.53.2(3)||Indicates that the land that is subject to an approved localized education development agreement that would otherwise be subject to the imposition of education development charges under a by-law would be exempt from those charges.|
|257.53.2(4)||The Board must notify the Minister if it does not enter into the approved localized education development agreement.|
|257.61(2)||Education development charge background study requirements are amended to also include a description of any alternative projects or localized education development agreements that a board intends to enter into.|
|257.61(3)||If a board receives approval from the Minister but does not proceed with an alternative project or localized education development agreement, they must update any information included in the background study accordingly.|
|257.61(4)||If a board receives approval from the Minister to enter into a localized education development agreement but doesn’t do so, the background study must be updated to reflect this.|
|257.63 (1.1)||Adds new section pertaining to requirements of notice of a public meeting before a by-law is passed in that notice must meet the requirements prescribed in the regulations. The existing notice requirement is at least 20-days notice of the meeting in accordance with the regulations.|
|257.63 (2.1)||Adds a new section stating that following the final public meetings, in determining whether to make any changes to the background study or proposed by-law, a school board shall consider any representations relating to the proposed by-law by any person who attends a meeting, as well as any alternative projects or localized education development agreements that were proposed through any representations.|
|257.70(2)||Specified amendments to an education development charge by-law (which are listed in the current section 257.70(2) of the Education Act) may only be passed once in the one-year period immediately following the coming into force of the by-law and in each subsequent one-year period.|
|257.101(1)||The Lieutenant Governor in Council may make regulations that may have general or particular application in respect of a board relating to alternative projects, localized education development agreements, and any transitional matters considered necessary or advisable with the implementation of the subject amendments.|
|257.101(1)(e)||Regulations can be made to govern the expiry of education development charge by-laws, irrespective of whether they are passed by different boards applying to the same area.|
|257.101(3)||A transition regulation may provide that it applies despite this Act.|
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
- 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.
- 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.
- 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.
- 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.
|Endangered Species Act, 2007|
|Classification of Species|
|5(4)||The criteria for assessing and classifying species as endangered, threatened or special concern shall include considerations of the species’ geographic range in Ontario and the condition of the species across the broader biologically relevant range inside and outside of Ontario.
|5(5)||If the condition of the species inside and outside Ontario would result in classification indicating a lower level of risk to survival than if COSSARO considered the condition inside Ontario only, the classification shall reflect the lower level of risk.
|7(4)||The Minister may take up to 12 months from the date a report is received from COSSARO to make and file an amendment to the regulation so that it reflects the new information contained in the report (extended from 3 months).
|8(3) and (4)||The Minister may reconsider the classification reported by COSSARO if the Minister is of the opinion that credible scientific information indicates that the classification may not be appropriate, and shall publish a notice thereof.
|8.1(1)||The Minister may order by regulation that when a species is listed on the Species at Risk in Ontario List as endangered or threatened for the first time, that the prohibition in subsections 9(1) and 10(1) shall be temporarily suspended.
|8.1(2)||The Minister may make such order between the dates when the COSSARO report is received and before the amendment is made to the Species at Risk in Ontario List.
|8.1(3)||The Minister’s order is subject to certain criteria, including that the prohibitions would likely have significant social or economic implications and that the temporary suspension will not jeopardize the survival of the species in Ontario, among others.
|8.1(5)||The period of temporary suspension shall be set out in the order and shall not exceed 3 years.
|8.2(1)||Where a species is listed as endangered or threatened on the Species at Risk in Ontario List for the first time, the prohibitions against possessing and transporting things under subsections 9(1)(b) and 10(1) shall not apply to existing permit holders and parties to a Landscape Agreement or an agreement under s. 19 for a period of 1 year.
|8.2(2)||If the Minister makes a temporary suspension order under s. 8.1, those prohibitions will not apply to the persons contemplated in subsection (1) for a further period of 1 year.
|Agreements, Permits and Other Instruments|
|16.1(1)||A Landscape Agreement shall meet the following requirements: (1) authorize a party to carry out activities in a geographic area identified in the agreement, (2) the authorized activities would be otherwise prohibited under section 9 or 10 with respect to one or more species in the agreement and listed on the Species at Risk in Ontario List as endangered or threatened, (3) the authorized party will execute beneficial actions that will assist with the protection or recovery of one or more species in the agreement (“benefiting species”).
|16.1(2)||The benefiting species in a Landscape Agreement are not required to be an impacted species under the agreement.
|16.1(3)||The Minister may enter into a Landscape Agreement only if, among other things: (a) at least one of the benefiting species is also an impacted species, (b) the authorized party is eligible pursuant to the regulations, (c) the agreement will not jeopardize the survival of the impacted species, reasonable steps are taken to minimize adverse effects and alternatives are considered, and the beneficial actions outweigh the adverse effects on the impacted species.
|16.1(4)||The Minister shall consider any government response statements respecting the benefiting and impacted species and such other matters prescribed in the regulations.
|16.1(5)||The Landscape Agreement may require the authorized party to pay a species conservation charge, if the impacted species is a conservation fund species.
|16.1(6) to (8)||The Minister may issue policy statements governing the form and content of Landscape Agreements that the agreements must be consistent with.
|17(2)||The limitations on the Minister to issue a permit have been amended to include the payment of a species conservation charge.
|17(2.1)||The Minister may make the payment of a species conservation charge a condition of a permit if it relates to a conservation fund species.
|18||The section pertaining to activities regulated under other Acts that are authorized by an Instrument or permitted or required under a regulation has been revised, including the requirement to pay a species conservation charge, if applicable.
|19(3.1)||An agreement or permit under section 19 may require the person or body to pay a species conservation charge.
|Species at Risk Conservation Fund|
|20.1(1) and (2)||Establishes the Species at Risk Conservation Fund, the purpose of which is to provide for the funding of activities that are reasonably likely to protect or recover conservation fund species or support their protection or recovery.
|20.1(3)||The Minister may designate conservation fund species by regulation.
|20.1(4)||The Agency shall administer and manage the affairs of the Fund.
|20.2||The Fund shall receive money through: (1) species conservation charges paid to the Agency, (2) the Crown, (3) donations, (4) revenue earned on money in the Fund or by the Agency, (5) refunds, and (6) sources prescribed by the regulations.
|20.3(1)||Species conservation charges shall be paid by: (1) authorized parties to a Landscape Agreement, (2) permit holder, if required, (3) a person who is authorized under s. 18 to engage in a prohibited activity, if required (4) an aboriginal person, band, tribe council, or community organization by agreement or permit under s. 19, and (5) a person who is exempt from the prohibited activities by regulations and must pay the charge as a condition.
|20.3(4) and (5)||The species conservation charge shall be prescribed by regulation and shall be paid to the Agency in accordance with the time and in the manner set out in the regulations.
|20.7||The Agency may make payments out of the fund 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.
|20.8||The Minister may establish written guidelines respecting activities that may receive funding from the Fund.
|21||The Minister may appoint persons or classes of persons as enforcement officers.
|27.1||The Minister may make a Species Protection Order when a person is engaging in or about to engage in an activity that has or is about to have a significant adverse effect on a species listed on, or recommended to be on, the Species at Risk in Ontario List or is subject to a temporary suspension order.
*Note that an enforcement officer may still make a stop order pursuant to s. 27 and the Minister may still make a Habitat Protection Order pursuant to s. 28.
|Regulations and Miscellaneous|
|48.1||The Minister may establish codes of practice, standards or guidelines for the protection of species on the Species at Risk in Ontario List or their habitat.
|55||Lists the regulations that may be made by order of the Lieutenant Governor in Council; including, exempting a person or activity from the prohibitions in ss. 9 and 10, and regulations pertaining to the new Agency.
|56||Lists the regulations that may be made by the Minister; including the definition of “habitat”, the criteria for Landscape Agreements, designating conservation fund species and establishing the associated species conservation charges.
|57||There is a special requirement that the Minister must consider whether a proposed regulation is likely to jeopardize the survival of the species in Ontario or will have any other significant adverse effect on the species when making certain regulations (s. 57(1)).
The Minister may nevertheless make such regulations if certain criteria are met, for example if the Minister has considered a Landscape Agreement or permit (s. 57(2)).
Conservation Authorities Act
- 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.
- 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.
|Conservation Authorities Act|
|Membership and Governance|
|14.1||Every member of an authority shall act honestly and in food faith with a view to furthering the objects of the authority.
|Objects, Powers and Duties|
|21.1||An authority shall provide programs or services within its area of jurisdiction that are prescribed by the regulations and relates to: (1) the risk of natural hazards, (2) the conservation and management of lands owned or controlled by the authority, (3) the authority’s duties, functions and responsibilities under the Clean Water Act, 2006 and under (4) the regulations.
|21.1.1||An authority may provide municipal programs and services within its area of jurisdiction on behalf of a municipality pursuant to a memorandum of understanding or other form of agreement with the municipality.
|21.1.2(1) and (2)||An authority may provide such other programs and services as it determines are advisable to further its objects, subject to the financing provisions under ss. 25 and 27 related to financing by a participating municipality with which it has an agreement
|21.1.3||Every authority shall develop and implement a transition plan.
|23.1(4) and (5)||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.
|23.1(7) and (8)||The investigator shall report in writing to the Minister, who will transmit the report to the authority. The Authority may be required to pay all or part of the costs of the investigation.
|25(1.1) and (1.2)||The authority shall not include in the apportionment any capital costs connected with a program or service under s. 21.1.2(1), unless the apportionment of capital costs has been identified in an agreement with the municipality under 21.1.2(2).
|27(1.1) and (1.2)||The authority shall not include in the apportionment any operating expenses connected with a program or service under s. 21.1.2(1), unless the apportionment of operating expenses has been identified in an agreement with the municipality under 21.1.2(2).
|27.2(1) and (2)||An authority may determine the amounts owed by a specified municipality, as defined, in connection with the programs and services provided under the Clean Water Act, 2006 and Lake Simcoe Protection Act, 2008.
|27.2(3) to (9)||An authority shall provide notice of the amount owing to the specified municipality, and the specified municipality may apply to the Mining and Lands Commissioner for review of the determination of the amount owing.
|40||Sets out the regulations that may be made by the Lieutenant Governor in Council and those which may be made by the Minister.
Environmental Protection Act
- 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 Protection Act|
|Vehicle Permits and Number Plates|
|49(1)||A provincial officer may seize the number plates for a vehicle if he or she reasonably believes that the vehicle was used in connection with the commission of an offence and the seizure is necessary to prevent the continuation or repetition of the offence
|50(1)||If a person is convicted of an offence, the court may make certain orders, as enumerated in the Act, in respect of any vehicle or holder of the permit for the vehicle that the court is satisfied was used in connection with the commission of the offence.
|50(2)||An order under (1) shall be for a period that the court considers appropriate, not exceeding five years.
|50(4)||Court may issue an order under this section in addition to any other penalty imposed.
|182.3(1)||The purpose of administrative penalties is: to ensure compliance with any requirements or orders under this Act, to prevent economic benefit as a result of a contravention, and to address other contraventions under the Act and its regulations that are not environmental penalties.
|182.3(3)||A prescribed contravention may be in respect of: a provision of this Act or its regulations, a provision of an order under this Act, or a term or condition of an environmental compliance approval, certificate of property use, renewable energy approval, licence or permit under this Act.
|182.3(8)||The total amount of an administrative penalty shall not exceed $200,000 for each contravention subject to subsection 9, where the total amount may be increased by an amount equal to the total amount of the monetary benefit acquired by or accrued to the person responsible for the contravention
Environmental Assessment Act
- 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
- 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.
|Environmental Assessment Act|
|Class Environmental Assessments|
|11.4(3.1)||The Minister or Tribunal may, by order, require the proponent of the undertaking to provide plans, specifications, technical reports or other information and to carry out and report on tests or experiments relating to the undertaking.
|11.4(4)||Where a Minister or the Tribunal reconsiders an approval, that approval may be amended or revoked.
|11.4(4.1)||A decision under this section shall be made in accordance with any rules and restrictions that may be prescribed.
|15.3(1)||A class environmental assessment as it is approved or amended may provide that this Act does not apply with respect to one or more undertakings within the class.
|15.3(2)||An undertaking provided for in subsection (1) is exempt from this Act.
|15.3(3) and (4)||Within the enumerated list of class environmental assessments, there may specific exemptions for certain undertakings that comply with the conditions if not further assessment or public consultation is necessary.
|15.4||The Minister may amend an approved class environmental assessment.
|16(4.1)||The Minister may issue an order under subsection (1) or (3) [an order to comply with Part II of the Act before proceeding with a proposed undertaking] only if the Minister is of the opinion that the order may prevent, mitigate or remedy adverse impacts on either: 1. existing aboriginal and treaty rights or 2. a prescribed matter of provincial importance.
|16(7.1)||If the Minister has not made a decision within the prescribed time with respect of a request to the Minister to make an order, the Minister must provide written reasons to the proponent of the undertaking and any person who requested the order.
|16(7.2)||The Director shall review the request for an order to ensure it complies with the applicable criteria before the Minister considers it.
|17(6) and (7)||Provides how orders under s. 16 shall be applied with respect to the transition resulting from the More Homes, More Choice Act, 2019.
Please check our 2019 Planning Reform page and other blog posts for more details on Bill 108.