The Development Permit System (“DPS”) is a planning tool intended to streamline, expedite and provide flexibility in the planning approval process. Under the DPS, zoning, minor variance and site plan approvals are combined into a single process for one or more areas as designated by a municipality.
In a DPS by-law a municipality can set out permitted “as-of-right” uses and discretionary uses, subject to identified criteria. The DPS also provides flexibility by allowing variations from permitted standards, subject to criteria adopted within the DPS by-law.
Lake of Bays, Carleton Place and Gananoque have implemented a DPS. Council of the City of Brampton has adopted two DPS OPAs and a DPS by-law, all of which are under appeal before the Ontario Municipal Board, (the “OMB”). City of Toronto Council has also adopted a DPS OPA and it too has been appealed to the O.M.B.
Ontario Regulation 608/06 sets out a two-step process for a municipality to implement a DPS. First, the municipality must amend its Official Plan to identify one or more areas as proposed DPS areas. Second, the municipality must enact a by-law establishing a DPS for one or more DPS areas. Both the Official Plan Amendment and the DPS by-law may be appealed to the OMB, under sections 17 and 34 of the Planning Act, respectively.
Once appeals of the DPS by-law to the OMB, if any, have been dealt with and the DPS by-law comes into force, all by-laws passed under section 34 of the Planning Act are deemed to be repealed with respect to the DPS area covered by the DPS by-law. Also, once the DPS is established, only the applicant can appeal a permit application to the OMB.
Under the DPS framework, a municipality has 45 days to make a decision on a complete application before the applicant may appeal a Council non-decision to the OMB. An application that falls within the DPS by-law’s minimum and maximum development standards may result in a permit being issued, with or without conditions including “prior to issuance” conditions. If variations are authorized by the DPS by-law, an application that does not meet minimum or maximum standards may be approved, if the test specified in the DPS by-law is satisfied. If a development proposal does not satisfy the DPS standards or the test for variations, where authorized, a DPS by-law amendment would be required. Where the DPS application is refused, or approved with conditions, an applicant may appeal a permit decision within 20 days.
The DPS, where implemented, replaces the site-by-site approach to development with comprehensive planning at the neighbourhood scale. Development criteria outlined in a DPS by-law is based on a comprehensive plan for the DPS area. Therefore, amendments to the DPS by-law may be assessed in the context of the overall vision for that area. Applicants seeking to amend the DPS by-law may need to justify the amendment in relation to the entire DPS area. A DPS by-law amendment will have to be supported by technical reports. It will also require public consultation and the applicant may need to show that the area as a whole has changed since DPS by-law was enacted.
For instance, Toronto’s OPA 258 states that both a City-initiated amendment and an application to amend a DPS by-law must be considered in the context of all lands within the area subject to the by-law. The OPA also requires that an amendment to the DPS by-law be supported by a comprehensive planning rationale within the context of the entire subject area and outlines what that planning rationale should include.
Community consultation during the DPS by-law implementation stage is intended to determine the community vision for a DPS area. The community vision will feed into the development criteria and standards for the DPS by-law. Stakeholder involvement at this early stage is essential.
For more information on the subject please see the following items:
Katarzyna SliwaRead More
On December 1, 2014, Ontario once again tabled legislation targeting litigation brought for the purpose of stifling debate on matters of public interest, known as Strategic Litigation against Public Participation (“SLAPP”).
A SLAPP lawsuit typically involves a defamation claim against an expression made by the defendant that is contrary to the plaintiff’s interests. Proponents of anti-SLAPP legislation say these lawsuits are usually meritless and are brought by wealthy corporate entities against individuals or community groups for the purpose of discouraging public opposition.
If passed, the proposed Protection of Public Participation Act, 2014 (the “PPPA”) will allow a defendant in an alleged SLAPP lawsuit to bring a motion for dismissal at any stage in the proceeding. The defendant must show that its expression is related to a matter of public interest. If this is shown, the judge must dismiss the lawsuit, unless the plaintiff shows that:
(1) The lawsuit has substantial merit;
(2) The defendant has no valid defence to the claim; and
(3) The harm caused by the expression is serious enough that the public interest in allowing the lawsuit to continue outweighs the public interest in protecting the expression.
The motion must be heard within 60 days of being filed. Any related tribunal proceedings will be stayed if the defendant files a copy of the notice of motion with the tribunal. If the defendant succeeds in getting the proceeding dismissed, it will be entitled to 100% of its costs, which is almost never granted in typical lawsuits. The PPPA also gives the court discretion to award damages where it determines that the lawsuit was brought for an “improper purpose”.
In a typical defamation lawsuit, the plaintiff only needs to prove that the expression was defamatory and that it was communicated to at least one person. The onus then shifts to the defendant to prove that it has a defence to the claim (e.g. the content of the expression was true, or the expression was appropriate in the circumstances).
The PPPA reverses the onus of proof in defamation claims by forcing a plaintiff to not only prove its case, but also prove that there is no defence, all within a short 60 day timeframe. The defendant simply has to show that its expression related to a matter of public interest. This creates a presumption that any lawsuit against expression made in the context of a matter of public interest is a SLAPP lawsuit. A heavy burden then shifts to plaintiff to show that its lawsuit has “substantial merit” and, further, that there is no defence to the defamatory expression. This relieves the normal burden on the defendant and saddles the plaintiff with the difficult task of “proving a negative” without the benefit of a full trial.
The legislation creates a motion to dismiss with a very limited burden on the party bringing the motion (the “moving party”). In a typical motion to dismiss, the moving party must show that there is no genuine issue for trial, and is expected to lead evidence to prove this. Under the PPPA, once the defendant meets the threshold requirement that the expression relates to a matter of public interest, the burden of proof shifts entirely to the plaintiff to show that the lawsuit should not be dismissed.
What constitutes a matter of “public interest” is not defined in the legislation. How this gets interpreted by the courts will determine how easy it will be for a defendant to meet the threshold requirement and, consequently, how difficult it will be to advance a defamation claim in the future. The PPPA may therefore make for some ambiguous litigation where defendants have very little to lose in bringing a motion to dismiss as proposed in the legislation.
The intent of the PPPA is to prevent improper lawsuits. The presumption that the legislation creates (that any lawsuit against expression related to a matter of public interest is SLAPP) arguably goes beyond this intent and creates undue hardship for those with legitimate defamation claims.
Davies Howe Partners LLP has been involved in countless municipal planning and environmental matters that would likely be considered matters of “public interest” for the purposes of anti-SLAPP legislation, and has rarely seen accusations of SLAPP. In one instance, the firm sought substantial costs on behalf of a client in an Ontario Municipal Board (the “Board”) proceeding, where our client’s appeals were opposed by ratepayers seeking to stop its proposed development. The opposing parties argued that in seeking a high costs award, our client was engaging in SLAPP. The Board dismissed that allegation, determining that the cost claim was not brought for any improper purpose but rather out of genuine belief in entitlement to substantial indemnity costs.
Kate FairbrotherRead More
Davies Howe Partners LLP has once again been recognized by Novae Res Urbis as the top GTA law firm for Planning and Development.
Excerpt: “Davies Howe Partners once again retains the number one
spot in the GTA annual rankings, with its solicitors involved
in practically every major decision……..The sheer number
of OMB cases Davies Howe is involved in will make it an
uphill battle for any firm to challenge it for the number one
position in 2015.”
To read the complete Novae Res Urbis article, please click here.Read More
It has long been clear that a landowner who grants a right-of-way over his land does not give up the right do what he wants with that land, as long as the use does not interfere with the easement, as granted.
On October 24, 2014, the Ontario Court of Appeal affirmed this principle and provided a helpful overview of the law as it relates to encroachments on rights-of-way.
The case of Weidelich v. de Koning involved a right-of-way running behind a series of six row houses in Toronto. The right-of-way allowed the owners of these houses, known in law as the “dominant owners”, to access their garages. The owners of the house at the entrance to the right-of-way built an addition to their home that encroached upon a part of the right-of-way.
The Court of Appeal upheld the “substantial interference” test, stating that “an encroachment on a private right-of-way is actionable only where the encroachment substantially interferes with the dominant owner’s ability to use the right-of-way for a purpose identified in the grant”.
The dominant owner does not own the land upon which the right-of-way runs, but only enjoys the reasonable use of that land subject to the terms of the grant. However, the landowner cannot create an obstruction that prevents the dominant owner from substantially and practically exercising his right as conveniently after as before the obstruction. Further, the wording of the grant of the right-of-way may be so broad as to its use, or so specific as to its necessary dimensions, that almost any form of interference may be unlawful.
Hence, every case of encroachment on a right-of-way will turn on the specific circumstances, including the terms of the grant, the nature of the encroachment and its impact on the use of the right-of-way. The law also differs with respect to public as opposed to private roads.
With this decision, the Court of Appeal also made clear that it is irrelevant if a landowner deliberately encroaches onto lands subject to a right-of-way, so long as the interference is not “substantial”. In this regard, the Court held that Albiston v. Liu (a decision of the Small Claims Court) was wrongly decided.
Turning to the result in Weidelich, the Court of Appeal denied the neighbours’ appeal. It was uncontested that the addition to the house did not impede the neighbours’ ability to drive to and from their garages. The laneway remained at least 4.4 metres wide where the addition was built. Since the addition to the landowners’ home did not substantially interfere with the neighbours’ use of the right-of-way, it was not actionable.
By: Kyle GossenRead More
Lexpert®, Canada’s legal expert Directory, named Jeff Davies of Davies Howe Partners LLP one of Canada’s Leading Infrastructure Lawyers in a recent report. This Lexpert® story was published in the September issue of the Report on Business Magazine published by the Globe and Mail. Highlighting the rapid growth of public private partnerships in Canada, and tying effective legal modules to their continued success, Lexpert® described the selected lawyers as leading the “legal vanguard of Infrastructure evolution thus far.”
Click here to read the full report.Read More
On Sept 15th Pickering Council voted 4-3 to endorse Durham Live, a proposal made by Pickering Developments Inc. Durham Live is a proposal to re-zone vacant land in the Bayly and Church Streets area to a major tourist destination, which may include a variety of 40+ uses including a casino. DHP partner Katarzyna Sliwa, represented Durham Live.
For additional media coverage please see the following links:
“Ajax still questioning massive Pickering casino proposal” – durhamregion.com, Sept 03
“Pickering casino proposal marathon meeting forced to halt at 1 a.m.” – durhamregion.com, Sept 03
“Pickering casino project takes a step forward” – durhamregion.com, Sept 10
“Pickering council approves Durham Live re-zoning: What happens next?” – durhamregion.com, Sept 17Read More
Jeff Davies was recently quoted in Law Times, where he expressed his views on Toronto’s proposed Development Permit System (“DPS”). Jeff pointed out that, while well-intentioned, a DPS may have more problems and fewer benefits than its proponents expect and will “merely be the same creature dressed in different clothes.” Read the full article here.Read More
The Cobourg Internet, a community website, reported on a recent local OMB hearing.
The author describes Davies Howe Partners’ associate Katarzyna Sliwa as ‘super sharp. If she cross examines you, you lose.’ We agree! Click the link for the full report on her OMB victory.