2019 Planning Reform
Guide to Bill 108 – An Act to amend various statutes with respect to housing, other development and various other matters
(“More Homes, More Choice Act, 2019”)
On May 2, 2019, the Province announced substantial changes to several statutes which will have a significant impact on the land use planning and appeals process, the development charges and heritage regimes, and the environmental assessment process.
While there is no confirmed date upon which Bill 108 will come into force, we anticipate that the Province will attempt to pass the legislation prior to the Legislature’s summer break, which is currently scheduled to begin on June 7, 2019. Most provisions within Bill 108 would come into force on dates to be subsequently identified.
Below is a guide to the proposed changes to the Local Planning Appeal Tribunal Act, 2017, the Planning Act, and the Ontario Heritage Act. Updates on other schedules of Bill 108 will follow. Also, it is noted that there may be amendments to Bill 108 prior to the passage of the legislation. Consequently, the guide below is based on Bill 108 in its current form as of Second Reading on May 22, 2019.
Local Planning Appeal Tribunal Act, 2017
1. The return of evidentiary-based hearings
• Repeal of sections 38 to 42 which outlined specific practices and procedure for appeals under sections 17(24), 17(36), 17(40), 22(7), 34(11), 34(19), and 51(34) of the Planning Act, including removing the restriction on parties being permitted to adduce evidence or call or examine witnesses.
• The Tribunal can limit examination and cross-examination of a witness if it feels satisfied that all matters relevant to the issues have been fully disclosed or in any other circumstance the Tribunal considers fair and appropriate (section 33(2.1)).
• Non-parties (eg. participants) to a proceeding before the Tribunal can make submissions in writing only (section 33.2), but the Tribunal can direct a non-party to produce evidence for examination by the Tribunal (section 33(2)(c)).
2. Emphasis on mediation and alternative dispute techniques
• The Tribunal can direct parties to a proceeding before it to participate in mediation or another dispute resolution process (section 33(1.1)).
• For certain types of Planning Act appeals (Official Plans, Zoning By-laws and Plan of Subdivision), Case Management Conferences shall include discussion of resolving issues through mediation or other dispute resolution processes (section 33.1(2)).
3. Tribunal can no longer state a case to Divisional Court
• Repeal of section 36 which permitted the Tribunal to state a case to the Divisional Court for the opinion of the Court on a question of law.
• The Minister may make regulations for transitional rules respecting certain Planning Act appeals that were commenced before, on or after the date on which the repeal of sections 38 to 42 come into force (section 43.1). These regulations have not yet been released for public review and/or consultation.
Generally, the proposed amendments reverse several of the changes made to the Planning Act through Bill 139. Bill 108 also proposes to thoroughly overhaul the current community benefits regime (i.e. section 37 and parkland contributions) with a more transparent and consolidated process.
1. Broadening of Grounds for Appeals under sections 17(24), 17(36), 17(40), 22(7), 34(11) and 34(19)
• Repeal of narrow consistency and conformity grounds as the basis of appeals under the above-noted sections.
• Repeal of provisions requiring “explanations” of consistency/conformity as the sole basis of an appeal in a Notice of Appeal.
The amendments propose to revert to pre-Bill 139 language which requires an appellant to “set out the reasons for the appeal” in an appeal under section 17(24) and 17(36) (sections 17(25(b)) and 17(37)(b)).
Explanation requirements are no longer required in notices of appeal under sections 22(7), 34(11) and 34(19) (as per the pre-Bill 139 Planning Act, explanations are required if the Appellant intends to raise issues of consistency and conformity with Provincial Plans or Official Plans).
• Resulting from the removal of required “explanations”, the dismissal without holding a hearing provisions are proposed to revert to pre-Bill 139 language.
2. Timing of Municipal Decisions
• Reductions in timing of municipal decisions prior to a potential appeal for non-decision as follows:
Official Plans – 120 days (sections 17(34.1), 17(40.2) and 22(7.0.2))
Zoning By-law Amendments – 90 days (unless the ZBLA is in association with an Official Plan, in which it is also 120 days) (section 34(11))
Removal of Holding Symbol – 90 days (section 36(3))
Plan of Subdivision – 120 days (section 51(34))
3. Restrictions on Third Party Appeals for Non-Decisions of Official Plans and Decisions on Plans of Subdivision
• Appeals under section 17(40) (i.e. appeals of the failure of an approval authority to make a decision) are now restricted to:
the municipality that adopted the plan;
the Minister (if the Minister is not an approval authority); and,
in the case of an official plan amendment adopted in response to a request under section 22, the person or public body that requested the amendment (section 17(40)).
• Third party appeals under sections 51(39) (i.e. the decision on a plan of subdivision, a lapsing provision, or any of the conditions) and 51(43) (i.e. appeal of conditions before final approval) are now restricted to certain agencies (primarily utilities and transportation entities) that are listed in section 51(48.3) who made oral or written submissions.
4. Community Benefits Charge By-law
• Repeal of current section 37 provisions which allow a municipality to authorize increases in height and density in a zoning by-law in exchange for facilities, services or matters.
• New section 37 replaces the current section 37 regime and replaces the power to impose a development charge for the services set out in section 9.1(3) of the amended Development Charges Act, 1997 (i.e. services that can generally be categorized as “soft” services).
• Introduction of the ability for a municipality to pass a by-law imposing “community benefit charges” (“CBC”) against land to pay for the capital costs of facilities, services and matters required because of development or redevelopment in an area (section 37(2)), with exemptions for certain types of development or redevelopment and for certain facilities, services or matters to be set out in regulations (sections 37(4) and (5)).
• Prior to passing a CBC By-law, a municipality must prepare a “community benefits strategy” which identifies the facilities, services and matters that will be funded with CBCs and undergoes public consultation (sections 37(9) and 37(10)).
• A municipality that has passed a CBC By-law can allow in-kind contributions where the owner of land provides the facilities, services or matters required (section 37(7)).
• Prohibition on construction of a building until the CBC is paid/provided or satisfactory arrangements have been made for payment (section 37(24)).
• The maximum community benefit charge payable cannot exceed an amount equal to a prescribed percentage of the value of the land as of the valuation date (i.e. the day before the day the first building permit is issued for the development or redevelopment) (section 37(12)). The regulations setting out this prescribed percentage have not been released.
The regulations may prescribe different percentages for different municipalities or classes of municipalities (section 70.1(3.1)).
• Payment and Appraisal Process (sections 37(13) to (23))
1. If an owner is of the view that the community benefits charge exceeds the amount permitted, it can make a payment under protest.
a. The owner will also have to provide an appraisal report within a prescribed period of time; otherwise, the payment will be deemed not to be made under protest.
2. If the municipality disputes the value of the land in the owner’s appraisal, the municipality shall provide the owner with its own appraisal:
a. If the municipality’s appraisal determines that the value of the land is within 5% of the value set out in the owner’s appraisal, the municipality shall immediately refund the difference between the CBC imposed and the higher of the maximum amount identified in each of the appraisal reports; or,
b. If the municipality’s appraisal determines that the value of the land is not within 5% of the value set out in the owner’s appraisal, the municipality must request that an independent appraiser to be selected by the owner from a list of appraisers maintained by the municipality prepare an appraisal;
i. The municipality must refund the difference between the CBC imposed and the maximum amount identified in the independent appraiser’s report;
c. If a municipality does not provide an appraisal, the municipality must immediately refund the owner the difference between the CBC imposed and the owner’s appraisal report.
The repealed section 37 provisions will be in force and effect until the earlier of: (a) a community benefits by-law is passed by a municipality; and (b) the date prescribed under section 9.1 of the DC Act.
If by-laws with “section 37” provisions have been passed before Bill 108 is in force and effect, the repealed section 37 provisions and development continue to apply with respect to the lands subject to the By-law.
• Similarly, development charges arising from by-laws that have previously been passed in relation to section 9.1(3) of the DC Act continue to apply.
5. Parkland By-laws
• If a CBC By-law is in force in a municipality, a parkland by-law passed under section 42(1) is of no force and effect (section 42(2)).
• Repeal of the alternative conveyance and rate provisions.
6. Parkland conditions to approval of Plan of Subdivision
• A development within a plan of subdivision is not subject to a CBC By-law if the approval of the plan of subdivision is subject to a condition that land be conveyed for park or other public recreational purposes (section 51.1(6)).
• Repeal of the alternative conveyance and rate provisions.
7. Mandatory Development Permit Systems
• The Minister can now require a local municipality to adopt a development permit system that applies to a specified area or to an area surrounding and including a specified location (section 70.2.2(1)).
If the order specifies a particular location, the local municipality is required to establish the development permit system (section 70.2.2(3) and (4)).
8. Inclusionary Zoning
• Inclusionary zoning policies in official plans are now restricted to those areas that are: (a) protected major transit station areas; or (b) an area in which a development permit system is adopted or established in response to an order made by the Minister (section 16(5)).
9. Additional Residential Units
• Official Plans are now required to contain policies authorizing additional residential units by (a) authorizing two residential units in a detached, semi-detached or row house; and (b) by authorizing a residential unit in a building or structure ancillary to a detached, semi-detached or row house (section 16(3)).
• The Minister may make regulations which determine which matters and proceedings may be continued under the previous Bill 139 regime and which must be continued as part of the new Bill 108 regime (sections 70.10(1) and (2)).
This regulation may allow a new notice of appeal to be filed with the Tribunal, if appeals of Official Plan Amendments and Zoning By-law Amendments were filed under the Bill 139 regime (section 70.10(3)).
Ontario Heritage Act
Extensive changes have been proposed to the Ontario Heritage Act. Among the most notable amendments are those that propose that appeals relating to designating by-laws that are currently heard by the Conservation Review Board for a recommendation to the municipality would instead be heard by the Local Planning Appeal Tribunal for a binding decision.
1. Council must notify an owner if the property has not been designated, but has been included in the register for having cultural heritage value or interest
• Council must provide notice to an owner within 30 days after council includes its property in the register as a property that is not designated but that the municipality believes to be of cultural heritage value or interest (section 27(5)).
• An owner may object to Council’s decision to include a property in the register. There is no time limit as to when an owner must serve its notice of objection, but the restriction on demolition provisions have not changed. An owner may not demolish or remove a building or structure on its property listed in the register without providing council with at least 60 days’ notice (sections 27(7) and (9)).
• Council must consider the notice of objection and provide notice of its final decision to the owner, in such form as council considers proper, within 90 days after this decision is made (section 27(8)).
• These changes do not apply to properties in the register before these amendments come into force (section 27(13)).
2. New appeal process to the Tribunal of by-laws that designate a property
• Council may not give a notice of intention to designate a property under subsection 29(1) after 90 days have elapsed from a prescribed event, which will be detailed in the forthcoming regulations but is expected to be the filing of certain types of Planning Act applications (section 29(1.2)).
• Any person may still object to a notice of intention to designate within 30 days after the notice is published, however Council must now make a decision whether or not it will withdraw the notice of intention to designate within 90 days after the end of the 30-day period (section 29(6)).
• If no notice of objection is served, or if an objection is served and Council decides not to withdraw the notice of intent to designate, Council must pass a designating by-law within 120 days after the notice of intent to designate is published. If Council fails to pass a by-law within this timeframe, the intention to designate is deemed to be withdrawn (section 29(8)).
• Any person who objects to the by-law may appeal to the Tribunal within 30 days after the notice of the by-law is published in a locally distributed newspaper (section 29(11)).
• The Tribunal has the power to: dismiss the appeal or allow the appeal in whole or in part, and repeal or amend the by-law itself or direct Council to repeal or amend the by-law (section 29(15)).
• The new section 29 applies to by-laws that amend existing designating by-laws, with prescribed modifications, which includes that only the owner has the right to appeal an amending by-law to the Tribunal. However, section 29 does not apply to amending by-laws that provide minor corrections (section 30.1(1) and (2)).
3. The decision or application to repeal a designating by-law may also be appealed to the Tribunal
• Any person who objects to Council’s decision to repeal a designating by-law may appeal to the Tribunal within 30 days after the notice of passing of the repealing by-law is published in a locally distributed newspaper (section 31(9)).
• Owner initiated applications to repeal a designating by-law shall be published in a locally distributed newspaper, which shall provide that the notice of application to repeal may be objected to within 30 days of publication (section 32(3)).
• After consultation with the municipal heritage committee (if applicable), Council shall consider the owner’s application and make a decision within 90 days after the end of the 30-day period. At that point, Council shall either:
i. Refuse the application and serve the notice of refusal on the owner and any objector. The owner may file an appeal to the Tribunal within 30 days (section 32(5)1).
ii. Consent to the application, pass a by-law repealing the designating by-law and serve a copy of the repealing by-law on the owner and any objector. Council shall publish a notice of its decision to repeal the by-law in a newspaper and provide that any person may appeal the decision to the Tribunal within 30 days after the date of publication (section 32(5)2).
• Council and the owner may agree to extend the timeframe within which a decision must be rendered, however if Council fails to notify the owner of the decision within the agreed deadline Council is deemed to have consented to the application (section 32(6)).
• After holding the hearing, the Tribunal has the power to:
i. With respect to an appeal of Council’s decision to refuse an application to repeal a designating by-law – dismiss the appeal or allow the appeal in whole or in part. The Tribunal may repeal the by-law or part thereof or direct council to repeal the by-law (section 32(12)1).
ii. With respect to an appeal of Council’s consent to an application and passing of a repealing by-law – dismiss the appeal or allow the appeal in whole or in part. The Tribunal may repeal the repealing by-law, amend the repealing by-law, or direct the municipality to repeal or amend the repealing by-law (section 32(12)2).
• If a prescribed circumstance applies, the owner may not reapply to have the designating by-law or part thereof repealed within the time period determined in the regulations, except with the consent of council (section 32(18)).
4. New timeframes for Council’s consent to alter a designated property and the right to appeal a refusal to the Tribunal
• Once an application to alter a designated property is complete, Council must make its decision within 90 days after Council serves its notice of complete application, or a longer period as agreed upon by the owner and Council. Or, if the notice of complete application is not served within 60 days after the day the application commenced, the timeframe for Council to make a decision is 90 days after the 60-day period ends (section 33(7)).
• If Council fails to notify the owner of its decision within the determined timeframe, council shall be deemed to have consented to the application (section 33(8)).
• If Council consents to an application upon certain terms and conditions or refuses an application, the owner may appeal the decision to the Tribunal within 30 days of receipt of the notice of decision. The Tribunal may then dismiss the appeal or order that the municipality consent to the application, with or without terms and conditions (section 33(11)).
5. The owner of a designated property may apply to demolish or remove a heritage attribute of a property, as well as a building or structure
• The amendments clarify that no owner of a designated property under section 29 shall, without written consent from Council, demolish or remove any of the property’s heritage attributes as set out in the by-law or demolish or remove a building or structure on the property whether or not the demolition or removal would affect the property’s heritage attributes (section 34(1)).
• Council must make its decision within 90 days after Council serves its notice of complete application, or a longer period as agreed upon by the owner and Council. Or, if the notice of complete application is not served within 60 days after the day the application commenced, the timeframe for council to make a decision is 90 days after the 60-day period ends (section 34(4.3)).
• If Council fails to make a decision within the described timeframe, Council shall be deemed to have consented to the application (section 34(4.4)).
• When Council consents to an application, or when consent is deemed or ordered by the Tribunal, Council shall take such steps or actions as may be prescribed. A regulation may prescribe different steps or action for different circumstances, or that no steps or actions need to be taken (section 34.3(1) and (2)).
6. Other changes
• Municipal decision-making under Parts IV and V of the Act is to be guided by “prescribed principles”, which are yet to be identified (section 26.0.1 and 39.1.2).
• The definition of “designated property” under section 26 has been repealed (section 26(2)).
• Clarifies that the definition of “alter” and “alteration” does not include to demolish or to remove, for the purposes of sections 33, 34.5, 42, 69 and other provisions that may be prescribed in the regulations (section 1(2)).
The proposed changes to the Ontario Heritage Act are scheduled to come into force on a day named by proclamation.