The Development Permit System: When Can Your Client Appeal?
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with and the DPS by-law comes into force, all by-laws passed under section 34 of the Planning Act are deemed to be repealed with respect to the DPS area covered by the DPS by-law.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.