BILL 23 RECEIVES ROYAL ASSENT – Part 6: The End of an Era, a New Beginning…or Both?
On November 28, 2022, Bill 23, More Homes Built Faster Act, 2022 received royal assent and is now law in Ontario. The final version of the Bill is accessible here.
As the subject of our past five blog posts, as well as recent media coverage across the Province, Bill 23 has been, and continues to be, at the forefront of our minds. As such, this post will highlight some of the substantive revisions that were made to the Bill prior to it receiving royal assent and becoming law.
Introduced on October 25, 2022, Bill 23 was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) on October 31, 2022, where it was reviewed and considered by the Committee, and subsequently amended (the “Amended Bill”). A tracked changes version of the Amended Bill can be accessed here.
Planning Act Amendments
The Amended Bill introduced four substantive amendments as it relates to the Planning Act.
Third Party Appeal Rights
First, the Amended Bill walked-back the restrictions previously proposed on third-party appeal rights of official plans, official plan amendments, zoning by-laws and zoning by-law amendments.
However, the restrictions on third-party appeal rights remain for decisions regarding minor variances and consent applications. For these decisions, only the Minister, a “specified person” and public bodies who have an interest in the matter are permitted to appeal. As discussed in Part 1 of the Blog series, a “specified person” has a strict definition and does not include neighbouring property owners. This restriction is effective immediately and also applies to existing third-party appeals of minor variance and consent decisions where no hearing date has been set as of October 25, 2022.
While the Amended Bill’s “walk-back” is substantial, the restriction on third-party appeals of minor variances and consents is still a significant change to the planning regime.
Removal of Two-Year Prohibition
Second, the Amended Bill removed the prohibition on requests to amend official plans within two years of a new official plan coming into effect. Similarly, the Amended Bill removed the prohibition on requests to amend zoning by-laws and applications for minor variances within two years of a new by-law being passed. The original Bill only removed these prohibitions for requests related to pits and quarries.
Agreements Regarding In-Kind Contribution of Community Benefit Charges
Third, the Amended Bill introduced a new provision with respect to in-kind contributions that are made to satisfy community benefit charge requirements. The Amended Bill now permits municipalities to require an owner of land to enter into an agreement with the municipality regarding those contributions. The agreement may be registered against the land and thus enables the municipality to enforce the agreement against the owner and subsequent owners.
Reintroduction of Environmental and Sustainability Matters to Site Plan Control
Finally, the Amended Bill revised the exclusion of exterior design from matters subject to site plan control. Instead of excluding all matters of exterior design from site plan control as proposed by the original Bill, the Amended Bill permits site plan control over matters relating to building construction required by a by-law under section 97.1 of the Municipal Act, which includes green roofs, alternative roof services or other environmental standards in the construction of buildings. Further, while the originally proposed Bill 23 reiterated that the appearance of elements, facilities and works on the land under a municipality’s jurisdiction are not subject to site plan control except to the extent that the appearance impacts matters of health, safety, accessibility or the protection of adjoining lands, the Amended Bill adds “sustainable design” to this exception. Parallel amendments are made to the City of Toronto Act, 2001 with respect to the site plan provisions.
Development Charges Act Amendments
The Amended Bill introduced two substantive amendments to Bill 23 as it relates to the Development Charges Act, 1997 (the “DCA”).
As originally proposed, Bill 23 provided that development charge (“DC”) rates in a DC By-law enacted as of June 1, 2022 would be phased in over a 5-year period. In year one, the maximum DC that would be charged would be discounted at 20%. This discount would decrease by 5% each year until year 5, where the full rates would apply. The Amended Bill changes the June 1, 2022 date to January 1, 2022. Therefore, this discounted DC rate will apply to DC rates imposed under any DC By-law enacted between January 1, 2022 and November 28, 2022.
The Amended Bill also introduces a new subsection with respect to the discounted DC rate for rental housing development. The amendment provides an exception to the DCA that effectively permits the discount of the DC rate for rental housing development as outlined in section 26.2 of the DCA, even where there is an agreement under section 27 in respect of the prescribed development, and where the agreement was entered into before November 28, 2022. To facilitate this amendment, the Amended Bill also introduces a subsection to permit the Lieutenant Governor in Council to make regulations prescribing such types of development.
The Committee did not revise any of Bill 23’s amendments to the Ontario Land Tribunal Act, 2021 (Part 3 of the Blog-series); the Ontario Heritage Act (Part 4 of the Blog-series) or the Conservation Authorities Act (Part 5 of the Blog-series).
In addition, many of the amendments originally proposed to both the Planning Act (Part 1 of the Blog-series) and the DCA (Part 2 of the Blog-series) remain, including:
- Additional residential unit permissions under the Planning Act;
- Removal of powers from upper-tiers under the Planning Act;
- DC exemptions and discounts;
- Establishment of a maximum interest rate for DCs;
- All changes with respect to parkland; and
- New formulas to calculate CBCs.
The Amended Bill walked-back on some amendments originally proposed by Bill 23; however, there are still substantial changes that, as of November 28, 2022, are applicable to planning in Ontario.
While this is the end of our blog-series, it is the beginning of the Bill 23 planning regime, and Davies Howe LLP will continue to monitor how these changes play out on a practical level and with respect to your development.