Davies Howe “…lands the top prize in this year’s GTHA ranking for its consistently solid performance in a large number of highly complex and contentious appeals.” #1 Development Law Firm in the NRU’s 2017 annual ranking for the GTHA.
“Davies Howe wraps up another great year by moving up one spot to take the penultimate place in our Toronto rankings”. #2 Development Law Firm in the NRU’s 2017 annual ranking for Toronto.
Davies Howe will continue to lead the way in 2018 in the new planning landscape as we transition from the OMB to LPAT (Local Planning Appeal Tribunal) and continue to work in Toronto’s recently established TLAB (Toronto Local Appeal Body) process.
Building solutions. Planning success.
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.
Major mass transit projects are popping up across Ontario, encouraged in part by major investments from the Provincial and Federal governments. The cities of Toronto, Mississauga, Brampton, Hamilton, Kitchener-Waterloo and Ottawa are all working on building or expanding transit systems with Light Rail Transit (LRT). Other municipalities are making substantial investments in faster bus systems, including dedicated Bus Rapid Transit (BRT). These projects have the potential to be among the most transformational city-building projects to date for their respective cities, but this major infrastructure work often brings significant disruption on the way to completion.
A major impact of transit development for property owners along the route is the significant expropriation work often necessary to accommodate expanded transit. Municipal right-of-way widenings are often needed which can mean governments look to expropriate parts of properties, or sometimes entire properties along a transit route. When this happens, the expropriating authority has significant powers to take land for their use under Ontario’s Expropriations Act.
Expanded rapid transit may bring public benefits, but those benefits must be balanced with the protection of existing property interests. The basic principle for expropriation compensation was set out by the Supreme Court in Toronto Area Transit Operating Authority v. Dell Holdings Ltd.  1 SCR 32:
There is a presumption that owners will be fully compensated for all losses resulting from an expropriation – this includes costs for reasonably incurred professional fees from challenging compensation amounts.
The Expropriations Act sets out the procedures available to owners to ensure that they are properly compensated for the property they have lost. The Act also provides that owners are reimbursed for the reasonable professional fees that they incur to achieve this. The goal of the Act is to make owners whole.
Therefore, owners need not worry. While expropriations for major transit infrastructure have increased in recent years and will likely continue to do so for the foreseeable future, affected landowners should receive fair compensation for loss of private property.
On August 15th, 2017, in association with Urban Land Institute Toronto, Davies Howe LLP hosted a roundtable presentation and discussion on the new Growth Plan for the Greater Golden Horseshoe. The new Growth Plan was released on May 18th and came into force July 1st, 2017 as part of the Province of Ontario’s Coordinated Land Use Planning Review.
Davies Howe LLP was pleased to host this event in our new office, which showcased the capacity and functionality of our new multi-purpose boardroom.
The firm proudly looks forward to hosting more events in our new office.
As Canada moves forward with Aboriginal reconciliation, the issue of the Duty to Consult Aboriginal peoples will arise more frequently in land development. The Duty to Consult exists whenever the Crown, meaning the Federal or Provincial governments knows, or should have known, of the existence of the Aboriginal and treaty rights. As sign of things to come, the Province has recently included language in the Growth Plan recognizing that Aboriginal communities may have Aboriginal rights within the Plan area.
The law surrounding the Duty to Consult is just beginning to develop. Along with the development of the law comes implications for land development. A recent case, Saugeen First Nation v Ontario, serves as a reminder of the following important implications of the Duty to Consult:
· As a matter of Constitutional importance, the Crown needs to assess the level of consultation required when the issue of Aboriginal and treaty rights arises.
· The Duty to Consult, if it is not discharged, can halt progress on a project, despite other approvals being obtained. In Saugeen the project was a quarry that had gone through a ten year approval process, and had been approved. Notwithstanding the approval, the licence was set aside due to a failure to discharge the Duty to Consult.
· Consideration should be given to joining any approval process and the Duty to Consult to reduce the risk of project delay and minimize duplication.
· The Duty to Consult does not rest on the proponent of a project. Even though some part of the process of consultation may be delegated to a proponent, the Duty to Consult always remains a responsibility of the Crown.
· The Duty to Consult may require the Provincial or Federal governments to fund the expertise required to allow for meaningful engagement of Aboriginal interests. In Saugeen, the Province was required to pay $10,914 to allow Saugeen First Nation and Chippewas of Nawash Unceded First Nation to engage experts to assist in their review of the project.
Though Saugeen deals with a quarry, the principles will apply to any development where there are known or suspected Aboriginal Rights. Though it is impossible to anticipate where the Duty will arise without specific information, projects where the duty to consult might arise include:
· boundary expansions,
· hamlet developments,
· water oriented development,
· economic development projects like highway transportation depots,
· infrastructure projects, such as, highways and airports, and,
· resource development projects.
The City of Toronto has begun regulating the management, operation and maintenance of apartment buildings in Toronto. This includes new maintenance and communication obligations imposed upon owners and operators/managers of rental buildings, as well as penalties for their contravention.
The City’s new obligations and standards, found in Chapter 354 of the City of Toronto Municipal Code (the “Apartment Standards By-law”) came into effect on July 1, 2017.
The requirements apply to all owners and operators of purpose-built rental buildings that are:
- 3 or more storeys in height; and
- Contain 10 or more rental units;
Every person convicted of a violation under the new Apartment Standards By-law, is guilty of an offence and can be fined up to $100,000 and up to $10,000 for each day the offence continues. The City can also apply special fines to every person who obtains an economic advantage by contravening these new obligations.
As the fines for contravening the new Apartment Standards By-law are significant, owners and operators should educate themselves on the new obligations, which include:
- Yearly registration and payment of associated registration and inspection fees;
- Instituting a tracking system to document tenant requests and owner/operator responses;
- Creation of a tenant notification bulletin board to notify tenants of upcoming service disruptions, certain City-issued orders, City scheduled audits, pest treatment activities and other items;
- Adherence to a pest management inspection schedule and daily common area cleaning inspections;
- Preparation of a waste management plan, cleaning plan, and a “state of good repair capital plan”; and,
- Requirements for the owner/operator to maintain records demonstrating compliance.
The deadline for registration and payment of registration and inspection fees has been extended for this year only to September 30, 2017. Going forward, applicable purpose-built rental buildings must be registered between July 1 – 31 of each year.
The Apartment Standards By-law also authorizes City staff to conduct routine site visits and pre-audits of all apartment buildings to determine whether the apartment building complies.
The City can also prohibit renting a unit to a new tenant if that unit is, or has been, subject to a Property Standards order. The City will also be empowered to prohibit renting a unit to a new tenant if pests are presently an issue in the unit.
For additional information about the new Apartment Standards By-law and how it may impact your interest in a rental building, do not hesitate to contact Davies Howe LLP.
On May 18, 2017, the Province released new versions of its four provincial plans:
• Growth Plan for the Greater Golden Horseshoe (2017)
• Greenbelt Plan (2017)
• Oak Ridges Moraine Conservation Plan (2017)
• Niagara Escarpment Plan (2017)
The new plans are the result of the Province’s Co-ordinated Land Use Planning Review, which commenced in February, 2015. The new Niagara Escarpment Plan will come into effect on June 1, 2017, while the other three come into effect on July 1, 2017.
Common themes across the four new Plans include: greater emphasis on creating complete communities; strengthening protection and support for agricultural land and uses and natural heritage systems; requiring consideration of climate change in land use planning; and greater emphasis on conservation of cultural heritage resources.
The most significant changes are found in the new Growth Plan. While many of the guiding principles of the previous Growth Plan continue in this new Plan, significant changes have been introduced to the minimum intensification and density targets and planning for growth within Settlement Areas.
Despite concerns voiced by many of the Greater Golden Horseshoe (“GGH”) municipalities during the Co-ordinated Review, the increased intensification and density targets proposed in the draft version of the Plan released in May, 2016 have remained in this final version. However, phasing in of the targets has been added along with allowances for alternative targets and changes to the calculation of the density targets. Upper-tier municipalities will now be required to plan for a minimum of 60% of residential development to occur as intensification within their existing built-up areas by the year 2031 and onward (up from 40%), while densities in their vacant but designated areas are required to be planned for a minimum of 80 people and jobs combined per hectare across the upper-tier municipalities (increased from 50).
Other notable changes in the new Growth Plan include the establishment of hierarchies of Settlement Areas within upper-tier municipalities, as well as hierarchies of lands within Settlement Areas where growth is to be directed. Prohibitions on the development of “excess lands” which are within Settlement Areas but determined not to be needed to meet the growth and employment targets have been added for municipalities in the outer ring of the GGH.
The majority of the changes in the new Greenbelt Plan and Oak Ridges Moraine Conservation Plan focus on increasing permissions and protection for agricultural uses in these Plan areas. Policies for lot creation and expansion of settlement areas have also been tightened in these new Plans.
A new designation has been added to the Greenbelt Plan to recognize the Urban River Valley, which includes lands within the main corridors of river valleys connecting the rest of the Greenbelt to the Great Lakes and inland lakes. Associated policies have been included which apply only to publicly owned lands within the Urban River Valley designation.
On May 16, 2017, the Province announced significant proposed changes to the current land use planning appeal process.
Davies Howe has learned that the new system is anticipated to be in place sometime in 2018. Further, the Province indicated an intention to consult with stakeholders to define an appropriate transition period.
At this time, details are limited to what is set out in a news release entitled Giving Communities a Stronger Voice in Development and a backgrounder statement entitled Ontario’s Proposed Changes to the Land Use Planning Appeal System. More details will be known once the proposed legislation is made public. What we know at this time is that the Province is looking to:
- Replace the Ontario Municipal Board with a new body called the Local Planning Appeal Tribunal (“LPAT”), which will include changes to the practices and procedures of the appeal system
- Amend the Planning Act to eliminate ‘de novo’ hearings (i.e. “starting from the beginning”) and replacing it with an appeal system oriented toward reviewing the correctness of municipal council decisions
- Create a new statutory regime regarding hearing practices and procedures setting strict hearing timelines, requirements for written evidence and materials, and encouragement of alternative adjudication methods
- Require mandatory case management meetings between parties to settle issues, encourage settlement, and reach potential mediation;
- Exempt provincial approvals of Official Plans, approvals of conformity exercises, and minister’s zoning orders from appeal
- Expand Local Appeal Body (“LAB”) jurisdiction to include appeals of site plans in addition to their current scope of minor variances and consents;
- Enact a two-year moratorium on appeals for new secondary plans and a one-year moratorium for new interim control by-laws
- Establish a Local Planning Appeal Support Centre, an agency mandated to provide information and support to the public during land use planning appeal matters
Under the proposed new framework, municipal decisions can only be appealed to the LPAT if the decision was not consistent with Provincial or local municipal policies or plans. Successful appeals will then be referred back to municipal council for reconsideration, during which they have a 90-day period to issue a subsequent decision. The Tribunal will retain the jurisdiction to replace Council’s decision if, after second consideration, Council makes a subsequent non-conforming decision or does not render a decision within the allotted time period.
After extensive public and private consultation, on March 29th, 2017, Toronto City Council established the Toronto Local Appeal Body (“TLAB”) pursuant to Chapter 142 of the Toronto Municipal Code, the City of Toronto Act, and additional provincial legislation. As of May 3rd, 2017, all appeals of Committee of Adjustment Decisions under Section 45 and 53 of the Planning Act will be sent to the TLAB and not the Ontario Municipal Board (“OMB”), unless:
- An appeal was filed with the OMB prior to May 3, 2017, in which case all subsequent appeals will be made to the OMB; or,
- There is already a related appeal before the OMB for the same matter (including Official Plan Amendments, Zoning By-law Amendments, Site Plan Approval etc.)
The TLAB is comprised of seven Members on four-year terms that were recommended for appointment by a citizen-member nominating panel. Each hearing will be presided over by a minimum of one of the TLAB Members. You can review the biographies of the Chair and Members here.
The TLAB has released its own Rules and Practice and Procedure and administrative forms, separate and distinct from the OMB, which outline new procedural requirements and deadlines. Once the TLAB issues a Notice of Hearing, several key dates are triggered. Most notably, applicants only have 15 days from the date the TLAB issues a notice of hearing to submit any revisions to the original application. Parties must also disclose all documents to be relied upon at the Hearing within 30 days of the issuance of the Notice of Hearing. The TLAB also requires Witness Statements to be exchanged, which is a marked change from the present process before the OMB for minor variance and consent appeal hearings.
The TLAB is similar to the OMB in that it too is an independent quasi-judicial appeal body and all proceedings are conducted in accordance with the Statutory Power Procedures Act. Decisions of the TLAB are final after the issuance of a formal order, but as is the case with the OMB there is a process and certain criteria under which requests for reviews of TLAB decisions are considered. Reviews will be granted when it is determined that the TLAB either:
- Acted outside its jurisdiction;
- Violated natural justice for example, by not giving notice of the hearing;
- Made a material error of fact or law which would likely have resulted in a different order or decision;
- Heard false or misleading evidence that could have changed the decision; or,
- Should consider new evidence which was not available at the time of the hearing which evidence could change the decision.
A decision of the TLAB may also be subject to an Application for Judicial Review to the Divisional Court for any of the same the reasons set out above. A decision of the TLAB may also be subject to an Application to the Divisional Court, with leave, if it is determined that an error on a question of law was made during the proceedings.
For additional information about the TLAB and the process for hearings under the TLAB Rules of Practice and Procedure do not hesitate to contact any one of the land use lawyers at Davies Howe Partners LLP.