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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

The 2018 Novae Res Urbis (NRU) rankings of the Top 10 Development Law Firms have been released and Davies Howe has been ranked #2 in both the GTA and the GTHA.

The NRU describes it as “another stellar year for the Davies Howe team, which continues to prove it is a force to be reckoned with”  and goes on to say ”Davies Howe continues to maintain a powerful presence as one of Toronto’s preeminent planning and municipal law firms.”

We couldn’t have said it better.

On December 6, 2018, the provincial government introduced Bill 66, titled Restoring Ontario’s Competitiveness Act, 2018. Bill 66 proposes more than 30 amendments to existing legislation, including the Planning Act.
If passed in its current form, Bill 66 would add section 34.1 to the Planning Act, allowing local municipalities to pass an “open-for-business planning by-law” (“OFB By-law”). OFB By-laws would fast track zoning permissions for qualifying developments, subject to certain conditions normally associated with site plan approvals.
According to information released by the Ministry of Economic Development, an OFB By-law is intended to “remove planning barriers to expedite major business investments and speed up approvals so they would be completed within one year”.

Exemptions from Provincial Plans, Policies, and Laws
An OFB By-law would be exempt from, among others, the following requirements:
• Consistency with the Provincial Policy Statement, 2014;
• Conformity with the Growth Plan for the Greater Golden Horseshoe, 2017;
• Conformity with the Greenbelt Plan, 2017;
• Conformity with the Lake Simcoe Protection Plan, 2009;
• Conformity with the Oak Ridges Moraine Conservation Plan, 2017;
• Conformity with official plans;
• The applicability of a holding (“H”) provision;
• Height and density bonusing by-laws;
• Site plan approval; however, a municipality may still impose site plan related conditions;
• Subsections 34 (10.0.0.1) – (34) of the Planning Act which would mean, among other things, that:
– A person can apply for an amendment to applicable zoning through an OFB By-law within two years of the parent zoning by-law being passed;
– An OFB By-law cannot be appealed to the Local Planning Appeal Tribunal; and
– A municipality would not be required to give notice or hold a public meeting prior to enacting an OFB By-law;
• Section 39 of the Clean Water Act, which would mean that an OFB By-law would not need to:
–  Conform with significant threat policies and designated Great Lakes policies; and
–  Have regard to other policies set out in a drinking water source protection plan;
• Section 20 of the Great Lakes Protection Plan, 2015, which would mean that an OFB By-law would not need to:
– Conform with initiatives made under this Act; and
– Have regard to policies set out in Schedule 1 of the Act;
• Consistency with any transportation planning policy statement made under sub-section 31.1(4) of the Metrolinx Act, 2006;
• Conformity with any development plan made under the Ontario Planning and Development Act, 1994; and
• Consistency with any applicable policy statements made under the Resource Recovery and Circular Economy Act, 2016.

Procedure to Pass an OFB By-law
The municipality must pass a resolution requesting the Minister of Municipal Affairs and Housing to approve an OFB By-law, and an OFB By-law would also need to satisfy any prescribed criteria that may be established by regulation. If the Minister approves this request, a municipality could formally enact an OFB By-law, subject to any conditions that may be imposed by the Minister.
An OFB By-law would come into force on the 20th day after it is passed by Council, or a later day specified by the Minister. Although no notice is required prior to the passing of an OFB By-law, the municipality must notify the Minister within 3 days and certain persons or public bodies within 30 days of the passing of an OFB By-law.

Proposed Regulation
The provincial government also proposes a new Regulation under Bill 66 that would:
• Require confirmation that the proposal is for a new major employment use;
• Require evidence that the proposal would meet a minimum job creation threshold (e.g. 50 jobs for municipalities with a population of less than 250,000 people, or 100 jobs for municipalities with a population of more than 250,000 people);
• Identify the uses of land, buildings or structures that may be authorized by an OFB By-law, such as manufacturing and research and development, but not residential, commercial or retail as the primary use; and
• Prescribe how notice is to be given to the Minister of Municipal Affairs and Housing following the passing of an open-for-business by-law (similar to how the Minister is notified following the passing of a zoning by-law – e.g. email and personal service).

Legislative Process
The deadline to submit comments to the Environmental Registrar with respect to Bill 66 and its accompanying regulation is January 20, 2019.

Bill 66 has passed first reading. Davies Howe LLP will continue to monitor its status.

If you have any questions regarding Bill 66, please contact one of our municipal, planning and land development lawyers.