On April 14, 2022, Bill 109, the More Homes for Everyone Act, 2022, received royal assent, just two weeks after it was introduced by the provincial government on March 30, 2022. As such, we have provided an updated analysis below.
Planning Act Changes
Notable amendments to the Planning Act include:
- Requiring municipalities to provide refunds for zoning by-law amendment and site plan application fees where no decision is made during the statutory timeframe;
- The introduction of a new ministerial zoning tool, referred to by the Minister as the Community Infrastructure and Housing Accelerator (“CIHA”);
- An established review process for community benefit charge (“CBC”) by-laws;
- Amendments to parkland requirements on lands designated as Transit-Oriented Communities (“TOC”);
- Empowering the Minister with new powers regarding certain official plan amendments (“OPAs”) and new official plans; and
- Empowering the Minister to make regulations for the use of surety bonds as security for conditions imposed by a municipality on planning approvals.
Each change is discussed further below.
Application Fee Refunds
Changes to the approval process for zoning by-law amendment and site plan applications will require municipalities to refund application fees if a decision is not made within the legislative timelines. Refunds will be calculated on a graduated basis (i.e. 50%, 75% or 100%) depending on the number of days following the application. This change will apply to applications made on or after January 1, 2023.
The stated intent of this change is to expedite the approval process by facilitating faster decisions on applications.
Site Plan Control
Changes to both the Planning Act and the City of Toronto Act, 2006 will require municipal councils to delegate site plan control decisions to staff (i.e. an officer, employee or agent of the municipality). This will apply to all applications received on or after July 1, 2022.
Bill 109 also extended the site plan application review timeline from 30 days to 60 days. This means that an applicant can only appeal a municipality’s failure to approve their site plan application to the Ontario Land Tribunal (the “Tribunal”) beginning 60 days after the application was submitted, rather than 30 days.
Lastly, the changes establish complete application requirements for site plan applications, similar to current complete application requirements for other types of applications under the Planning Act, with recourse if the application has not been deemed complete within 30 days of acceptance by the municipality.
Plans of Subdivision
Bill 109 permits the establishment of a regulation-making authority to determine what cannot be required as a condition of draft plan approval. These requirements will be prescribed by a regulation made under the Planning Act, which has not been released yet.
In addition, the changes permit an approval authority to allow municipalities to reinstate draft plans of subdivision that have lapsed within the past five years without a new application. This exemption does not apply where the approval has previously been deemed not to lapse using this provision of the Planning Act, and if there is an agreement entered into for the sale of the land by a description in accordance with the draft approved plan of subdivision. If the draft plan of subdivision is deemed not to have lapsed, the approval authority shall specify a time when the approval lapses.
Community Infrastructure and Housing Accelerator
A new section to the Planning Act was added, which creates an additional type of Minister’s order notwithstanding that the Ministerial Zoning Order (“MZO”) under s. 47 of the Planning Act still exists. The Minister has indicated that the s. 47 MZOs will instead be reserved for provincially significant infrastructure projects like the TOC program.
The CIHA tool permits the Minister to make a zoning order at the request of the municipality, by Council resolution.
The Council’s resolution must:
- Identify the lands to which the order will apply; and
- Identify the manner the municipality’s powers will be exercised with respect to the lands.
The inclusion of a draft by-law in the resolution is deemed to satisfy these requirements. However, before passing such a resolution, the municipality must give notice to the public and consult with persons, public bodies and communities as the municipality considers appropriate. Within 15 days after Council passes the resolution, the municipality shall forward the resolution to the Minister, where it may make an order under s. 34 of the Planning Act or by way of a development permit by-law.
An order may not be made in respect of any land in the Greenbelt area. However, the order does not have to be consistent with the Provincial Policy Statement, 2020, nor does it have to conform, or not conflict, as the case may be, with provincial plans or official plans.
The Minister may also impose conditions on such an order, and the order prevails in the event of a conflict with other by-laws passed under s. 34 of the Planning Act.
Finally, before an order is issued, the Minister must establish guidelines respecting orders and publish the guidelines on a Government Website. Draft Guidelines were posted on March 30, 2022.
Currently, the Draft Guidelines indicate:
- Where CIHAs cannot be used (e. the Greenbelt);
- That CIHAs can be used to regulate the use of land and the location, height, size and spacing of buildings and structures to permit certain types of development; and
- That the Minister may make CIHAs to expedite certain developments, including planning approvals that support the quality of life for people and communities, any type of housing (particularly community housing, affordable housing and market-based housing), buildings that would facilitate employment and economic development and mixed-use developments.
CBC By-law Reviews
New subsections are proposed to the Planning Act, as well as the provincial regulation O. Reg. 509/20 regarding CBCs and Parkland, that increase the existing municipal reporting requirements. Municipalities that pass a CBC By-law will be required to undertake and complete a review of the by-law at least once every five years. The review will include public consultation.
Parkland Requirements for TOCs
The amendments implement a maximum and tiered alternative parkland dedication rate for municipal parkland in areas designated by the Minister of Transportation as TOC land under the Transit-Oriented Communities Act, 2020 (i.e. development projects that are connected with the construction of a station that is part of a defined priority transit project). The rate is based on a percentage of the development land or its value (10% on sites 5 hectares or less, and 15% on sites more than 5 hectares).
The changes also provide the Minister of Infrastructure with authority to identify encumbered land at TOC development sites that could be conveyed to a municipality as parkland.
Ministerial Powers Regarding Official Plan Approvals
The changes give the Minister new discretionary authority when making decisions on certain OPAs, or new official plans. The Minister is permitted to refer these matters to the Tribunal for a recommendation on whether the Minister should approve or modify the OPA or new official plan, or for a final decision. In either instance, the Tribunal may hold a hearing before making its recommendation or rendering its decision. If an Official Plan was submitted to the Minister for approval prior to April 14, 2022, and no decision respecting the Plan has been made, the Minister may still refer all or parts of the plan to the Tribunal for recommendation or a decision.
The changes also allow the Minister to suspend the time period in which to decide on all official plan matters subject to Minister’s approval (with transition for matters that are currently before the Minister).
Regulation-Making Authority for the Use of Surety Bonds
Lastly, another new section was added to the Planning Act that, once in force, will permit the Minister to make regulations prescribing and defining surety bonds and other prescribed instruments. Such instruments will authorize landowners and applicants to stipulate the type of surety bond (or other prescribed instrument) to secure obligations imposed by the municipality in connection with land use planning approvals. This new section will come into force on a day to be named by proclamation of the Lieutenant Governor.
Increased Funding to the Ontario Land Tribunal and the Landlord and Tenant Board
While not a result of a legislative amendment, the province has also announced that it will provide $19 million in funding over three years to the Tribunal and the Landlord and Tenant Board. This was a key recommendation in the Housing Affordability Task Force Report, and according to the province, the extra funding will support faster case resolution by increasing the number of adjudicators, mediators and case coordinators as well as by improving access to online services.
Conclusion
Bill 109 is purported to be the province’s first step in implementing the Ontario Housing Affordability Task Force’s report recommendations. Davies Howe LLP will continue to monitor how these changes unfold at a practical level.
