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On May 18^th, 2023 the Ontario government introduced Bill 112, the Hazel McCallion Act (Peel Dissolution), 2023. If proclaimed into law, the Act would dissolve Peel Region on January 1, 2025. Brampton, Mississauga and Caledon would all become single-tier municipalities thereafter.

The Transition Board

The Act does not provide specifics on how the dissolution of the Region, distribution of assets and liabilities, and the restructuring functions will be accomplished. Instead, the approach Bill 112 takes is to authorize the Minister to appoint a “Transition Board” of up to five people. The Transition Board will monitor the actions of the Region, Mississauga, Brampton and Caledon during the transition and is given the power to compel disclosure to assist in that role. The Transition Board is also tasked with providing recommendations to the Minister on the restructuring. The recommendations could be implemented through a variety of mechanisms, including through the passage of future regulations. However, the creation of regulations is not limited to the implementation of recommendations from the Transition Board.

A Requirement to Act in the Public Interest

Bill 112 contains provisions requiring the Region, Mississauga, Brampton and Caledon to consider the restructuring and public interest in transactions, commitments, and agreements entered into after May 18, 2023. The provision seems intended to ensure prudent decision making while simultaneously discouraging waste. The Transition Board is empowered to direct any of the municipalities to undo or not proceed with actions that the Transition Board sees as contrary to the public interest. That power is backstopped by the Minister’s power to make an order should the need arise.

Conclusion

What is clear is that Bill 112 is only the first step in what promises to be complex restructuring process that will be closely watched across much of Ontario.

On April 6, 2023, the Province published a proposal on the Environmental Registry of Ontario seeking input on the creation of an integrated Province-wide land use planning policy document, the Provincial Planning Statement (the “New PPS”). The New PPS proposes to take policies from the Provincial Policy Statement (the “PPS 2020”) and A Place to Grow: Growth Plan for the Greater Horseshoe Area (the “Growth Plan”) in an effort to support the achievement of housing objectives, while balancing the need to protect the environment and agricultural lands. The comment period is open until June 5, 2023.

The New PPS would be considered a policy statement for the purposes of subsection 3(1) of the Planning Act. In accordance with paragraph 3(5)(a) of the Planning Act, decisions of approval authorities would be required to be consistent with this document.

The significant highlights are summarized below and include policy direction to:

1. Generate Housing Supply and Make Land Available for Development.

2. Provide Infrastructure to Support Development.

3. Balance Housing with Resources.

Generating Housing Supply and Making Land Available for Development

Consistent with the Province’s direction to build 1.5 million homes, the New PPS includes policies that identify large and fast-growing municipalities, eliminate intensification targets and broaden a municipality’s ability to expand settlement areas. Below are details on some of the highlights.

            New Definition: Large and Fast-Growing Municipalities

The New PPS defines “large and fast-growing municipalities” as municipalities listed in Schedule 1.[1] Certain policies of the New PPS will only apply to the 29 listed municipalities. For example, large and fast-growing municipalities:

• Will be encouraged to plan for a minimum density target of 50 residents and jobs per hectare;

• Will identify and focus growth and development in strategic growth areas (“SGA”); and

• Will delineate the boundaries of Major Transit Station Areas (“MTSA”) on Higher Order Transit corridors through a new official plan or an official plan amendment.

            Growth Forecasts and Planning Horizons

Municipalities will no longer be required to plan for specific population and employment forecasts for an identified horizon year, as is currently the case pursuant to Schedule 3 of the Growth Plan. Instead, municipalities will be expected to complete their own forecasts, with the 2051 forecasting targets set as a minimum. Additionally, municipalities will be required to have enough land designated for at least 25 years (whereas the current requirement is to have enough land designated for up to 25 years) with planning permitted to extend beyond this horizon for infrastructure, employment areas and SGAs.

The PPS 2020 housing policy requirements to maintain lands designated and available for residential growth for a minimum of 15 years, and to maintain zoned lands with servicing capacity sufficient to provide at least 3 years of supply of residential units are maintained.

            Removal of Municipal Comprehensive Review

Currently, the Growth Plan contains various policies that generally only permit conversion of employment lands and the expansion of settlement areas through a municipal comprehensive review (“MCR”). The concept of the MCR has been removed in the New PPS, and as a result, the conversion of employment lands to non-employment lands and the expansion of settlement areas will be able to occur at any time.

            Settlement Areas and Settlement Area Boundary Expansion

The policies relating to settlement areas and settlement area boundary expansions are proposed to be revised substantially. Under the new policies, a new settlement area or expansion may occur at any time provided that planning authorities consider the following criteria:

• There is sufficient existing or planned capacity of infrastructure and public service facilities;

• The lands are not specialty crop areas;

• There is compliance with minimum distance separation formulae;

• Any impacts on agricultural lands are minimized or mitigated; and

• Whether there will be phased progression of urban development.

In addition, there will no longer be any prescribed density targets for new settlement areas; however, as noted above, large and fast-growing municipalities will be encouraged to plan for a minimum density target of 50 residents and jobs per gross hectare.

            Strategic Growth Areas

SGAs are a concept previously introduced in the Growth Plan and include MTSAs, Urban Growth Centres and other areas where growth or development will be focused. The New PPS would require large and fast-growing municipalities to identify SGAs and would permit other municipalities to do so at their discretion. This involves identifying an appropriate minimum density target and the appropriate type and scale of development for each SGA, as well as identifying appropriate transition of built form to areas adjacent to an SGA.

A new policy is also proposed that would require any reduction in size or change of location of an Urban Growth Centre that is identified in an official plan as of a date to be announced to occur only by way of a new official plan or an official plan amendment adopted under section 26 of the Planning Act.

            Major Transit Station Areas

The New PPS would incorporate the Growth Plan’s concept of MTSAs with some modifications. The proposed policies direct large and fast-growing municipalities to identify MTSAs and permit other municipalities to plan for MTSAs by delineating their boundaries on higher order transit corridors (i.e. GO Train and LRT stations) and establishing minimum density targets. The specified density targets and 500m to 800m radius delineation area remain unchanged.

            Increased Residential Development in Rural Areas

Currently, the PPS 2020 promotes development in rural areas that is compatible with the rural landscape and that encourages the conservation of existing rural housing stock on rural lands. The New PPS proposes to remove these policies to facilitate more development on rural lands. In addition, the New PPS proposes to permit increased residential development on rural lands by permitting multi-lot residential development where the site conditions are suitable for the provision of appropriate sewage and water services.

The New PPS also proposes to modify the agricultural policies of the PPS 2020 to facilitate more residential development in prime agricultural areas. The New PPS would permit a principal dwelling associated with an agricultural operation with some limited exceptions as well as up to two additional residential units provided the proposed units meet certain conditions. In addition, the New PPS would introduce policies permitting residential lot creation in prime agricultural areas in accordance with specific conditions.

            Employment Areas

The definition of an employment area is proposed to be amended to be consistent with proposed amendments to the Planning Act introduced by Bill 97, Helping Homebuyers, Protecting Tenants Act, 2023. The amendments propose to exclude office, institutional and commercial (retail) uses from the definition of employment area, unless associated with a primary employment area use.

Through the deletion of the MCR, employment conversions may occur at any time, subject to the conversion criteria, which are mostly the same as those in the PPS 2020 with some clarification added.

The Growth Plan concept of Provincially Significant Employment Zones (“PSEZs”) is also proposed to be removed. PSEZs are currently protected from conversion to non-employment uses unless it has been demonstrated to be appropriate in the context of an MCR. However, the Province has indicated that it is considering implementing the PSEZ concept through Ministerial Zoning Orders.

While the New PPS still requires the development of major facilities and sensitive land uses to avoid or minimize and mitigate any potential adverse effects and impacts to major facilities, there is no longer a requirement to demonstrate that there is an identified need for the sensitive land use or that there are no reasonable alternative locations.

The New PPS also directs planning authorities to protect and preserve employment areas located in proximity to major goods movement facilities and corridors, including facilities and corridors identified in provincial transportation plans.

Infrastructure to Support Development

The New PPS would prioritize planning and investments in infrastructure and public service facilities to support SGAs as focal areas for growth and development.

It would also encourage planning authorities, in consultation with school boards, to consider innovative approaches in the design of schools and associated childcare facilities in SGAs and other areas with a compact built form (i.e., schools integrated in high-rise developments).

Balance of Housing with Resources

            Expanded Housing Options Definition

The New PPS would expand the definition of ‘housing options’ to include laneway housing, garden suites, rooming houses, low- and mid-rise apartments, additional needs housing, multi-generational housing, student housing, farm worker housing, culturally appropriate housing, supportive housing, community housing and transitional housing.

            Removal of Affordable Housing Definition

The New PPS proposes to remove the definition of “affordable”, which currently exists in both the PPS 2020 and the Growth Plan. It also proposes to remove references to “market based and affordable housing” in the new housing policies as well as the current policy in the PPS 2020 that requires planning authorities to establish and implement minimum targets for the provision of housing which is affordable to low- and moderate-income households. Instead, the New PPS proposes a policy requiring planning authorities to co-ordinate land use planning and planning for housing with Service Managers to address the full range of housing options including housing affordability needs.

            Conversion of Existing Commercial and Institutional Buildings for Residential Use

The New PPS proposes to add a policy that planning authorities shall provide for an appropriate range and mix of housing options and densities by, among other things, permitting and facilitating the conversion of existing commercial and institutional buildings for residential use, the introduction of new housing options within previously developed areas and redevelopment which results in a net increase in residential units.

            Agriculture

The New PPS encourages planning authorities to enhance a geographically continuous agricultural land base and maintains many of the PPS 2020 agriculture policies. However, it would no longer require municipalities to use the Provincially mapped Agricultural System, but it would still encourage municipalities to use an agricultural system approach based on provincial guidance. It is unclear whether this guidance will be based on the existing Provincial Map of the Agricultural Land Base, or other provincial guidance.

Natural Heritage

The Natural Heritage policies and related definitions which currently exist in both the PPS 2020 and the Growth Plan are still under consideration by the Province.

Transition

On the same day the Province released the draft New PPS, it released its Proposed Approach to Implementation of the New PPS (the “Implementation Document”), which outlines the approach to determining the effective date and transition of the New PPS; the timing for official plan updates; employment area changes; and other Growth Plan specific transition matters.

In terms of the effective date, the Province is targeting fall 2023 for the New PPS policies to take effect. However, Bill 97 provides the Minister of Municipal Affairs and Housing with the authority to make transition regulations, which, if enacted, could change this date in prescribed circumstances.

In terms of official plan updates, the Province is proposing that official plans be updated as necessary to implement the New PPS policies at the time of their ordinary review cycle (i.e. every five years for existing official plans and every ten years for new official plans), with the exception of the revised definition of “area of employment” and employment area policies.

If Bill 97 is passed, many municipalities’ existing employment areas may permit uses which no longer meet the definition of an “area of employment”, and as a result, time-sensitive official plan updates would be required so that the permissions in designated employment areas comply with the permissions outlined in the proposed Planning Act amendments. In addition, to maintain the integrity of employment areas that are intended to remain protected, municipalities will be encouraged to explicitly authorize the site-specific permission of any existing employment uses that do not align with the new definition. Once/if the proposed legislative changes take effect, areas that do not meet the definition of “area of employment” and are not granted site-specific permission by a municipality, will no longer be subject to policy requirements for “conversions” to non-employment areas.

The Implementation Document also provides an update on the Bill 23, More Homes Built Faster Act, 2022 amendments which propose the removal of 7 upper-tier municipalities from being statutory approval authorities under the Planning Act, indicating that these amendments would not take effect until winter 2024 at the earliest.

Conclusion

Davies Howe LLP will continue to monitor the changes proposed to Ontario’s land use planning framework. Please reach out with any questions as to how these changes may impact you.

[1] Large and Fast Growing Municipalities include Town of Ajax; City of Barrie; City of Brampton; City of Brantford; City of Burlington; Town of Caledon; City of Cambridge; Municipality of Clarington; City of Guelph; City of Hamilton; City of Kingston; City of Kitchener; City of London; City of Markham; Town of Milton; City of Mississauga; Town of Newmarket; City of Niagara Falls; Town of Oakville; City of Oshawa; City of Ottawa; City of Pickering; City of Richmond Hill; City of St. Catharines; City of Toronto; City of Vaughan; City of Waterloo; Town of Whitby; and City of Windsor.

ULI Toronto April 19, 2023 – Meaghan presentation

We are pleased to share that Davies Howe LLP has been recognized in the Novae Res Urbis’ Top 10 Development law firm list for our expertise in Land Development. We are honoured to be ranked 2nd in the Greater Toronto Hamilton Area and 3rd in Toronto for 2022.

The NRU had this to say, “Davies Howe remains a force to be reckoned with at the OLT and the TLAB with the results to prove it.”, “Another solid year securing overwhelmingly positive outcomes for its clients at the Tribunal”.

Thank you to Novae Res Urbis, our clients, and our team for this recognition of our work.

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.

Not Amended

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.

Conclusion

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.

This is Part 5 of Davies Howe LLP’s Bill 23 blog-series, which focuses on the Bill’s changes to the Conservations Authorities Act (the “CAA”). Bill 23 received royal assent on November 28, 2022; however, many of the Bill’s changes to the CAA will not come into effect until a later date.

Bill 23 has introduced a series of legislative and proposed regulatory changes affecting conservation authorities. The Province has stated that the purpose of these changes is to accelerate housing development approvals while continuing to protect people, communities and critical resources.

Highlights include:

• Consolidation of the individual regulations of conservation authorities into a single regulation;
• Limiting the role of conservation authorities in granting development permissions;
• Focusing conservation authorities’ role in development application review;
• Removal of the terms “conservation of land” and “pollution” from considerations relevant in permitting decisions;
• Increasing ministerial powers in granting permissions and limiting conditions that conservation authorities may impose on permissions;
• Fee freezes; and
• Streamlining process associated with disposition of conservation authority-owned lands.

Consolidating Conservation Authority Regulations

Currently, a conservation authority is permitted to make regulations applicable to its jurisdiction area to regulate development, interference with wetlands and alterations to shorelines and watercourses. These regulations are subject to the approval of the Minister of Natural Resources and Forestry (the “MNRF”) and generally outline when an authority will grant a permit to regulate development that may interfere with wetlands or perform site alterations to shorelines and watercourses. This has resulted in each of the 36 conservation authorities across Ontario creating their own individual regulations.

Through Bill 23, on a day to be proclaimed by the Lieutenant Governor in Council (the “LG”), each of these regulations will be revoked, and an authority will no longer be able to make its own regulations applicable to its jurisdiction area.

Instead, the Province intends to prescribe a single, new regulation to govern all 36 authorities. Notably, this change effectively re-enacts the section 28 permitting process introduced by Bill 139 – Building Better Communities and Conserving Watersheds Act, 2017, which never came into force.

Limiting the Role of Conservation Authorities in Development Permissions

On a date to be proclaimed by the LG, a new subsection will be introduced to the CAA which proposes to exempt certain development authorized under the Planning Act from requiring a permit under the CAA. This change applies to municipalities prescribed by regulation. A subsection was added to the CAA which grants the LG the authority to prescribe this regulation, including rules governing transitional matters resulting from the new exception.

Exemptions for prescribed municipalities may be subject to conditions and restrictions, also set out by the LG in the regulation. The LG is not obligated to prescribe such conditions and restrictions; however, if the LG does precisely prescribe conditions or restrictions, these criteria must be satisfied to obtain the exemption.

In addition, if a conservation authority refuses a permit where it is the authority in charge of issuing such permit, an applicant may appeal such decision or conditions imposed as part of the permit to the MNRF or to the Ontario Land Tribunal (the “Tribunal”). If the conservation authority does not decide on the application within 90 days after a compliant application is made, the applicant may appeal such non-decision to the Tribunal. Currently, the applicant may not appeal the authority’s non-decision until 120 days have passed. This will change on a day to be proclaimed by the LG.

Focusing Conservation Authorities’ Role of Development Application Review

On January 1, 2023, a conservation authority’s role will be restricted to providing municipal programs or services within its jurisdiction that are related to reviewing and commenting on a proposal, application or other matters that are not made under a prescribed Act. To implement this change, the MNRF has been provided the authority to make regulations prescribing Acts.

The new regulation proposes to prescribe the following Acts under which, a conservation authority would no longer be able to provide municipal programs or services related to reviewing and comment on proposals or applications made under:

• The Aggregate Resources Act;
• The Condominium Act;
• The Drainage Act;
• The Endangered Species Act;
• The Environmental Assessment Act;
• The Environmental Protection Act;
• The Niagara Escarpment Planning and Development Act;
• The Ontario Heritage Act;
• The Ontario Water Resources Act; and
• The Planning Act.

In addition, and as discussed in Part 1 of this blog-series, Bill 23 amended the Planning Act (effective January 1, 2023) to limit the right of conservation authorities to appeal. When acting as a public body, a conservation authority will not be able to appeal a land use planning decision under the Planning Act unless the matters are related to natural hazards policies in provincial policy statements issued under the Planning Act.

Removal of Consideration of “Conservation of Land” and “Pollution”

Previously, when conservation authorities evaluated applications and made permitting decisions, the CAA prescribed certain factors that they must consider, which included any effects the development project was likely to have on the control of flooding, erosion, dynamic beaches or pollution or the conservation of land.

Bill 23 replaced the consideration of the effects on the “control of pollution” and on the “conservation of land”, with the effects on the “control of unstable soil or bedrock”. The other criteria remain the same.

Increasing Ministerial Powers

Bill 23 introduced amendments now in effect on the issuance of permits by conservation authorities where the lands are subject to a Ministerial Zoning Order (“MZO”) or a Community Infrastructure and Housing Accelerator (“CIHA”). As was the case prior to Bill 23, conservation authorities are required to issue permits to lands subject to MZOs. However, this now also applies to lands subject to CIHAs.

The amendments also further restrict the conditions that a conservation authority may impose on such permits by expanding the MNRF’s regulation making authority to, among other things:

• Prescribe conditions on a permit issued;
• Limit conditions on a permit issued;
• Exempt lands or development projects from specific requirements, including entering into compensation agreements with the conservation authorities; and
• Limit the commencement of a development project until a compensation agreement has been entered into with the conservation authority.

Fee Freeze

On January 1, 2023, a new section of the CAA comes into effect which will permit the MNRF to temporarily prevent conservation authorities from increasing their fees for development permits. This amendment permits the MNRF to direct an authority to “freeze” the amount charged for fees under section 21.2 of the CAA for its programs and services, including reviewing and commenting on planning and development related proposals as well as for permits issued by conservation authorities.

Disposition of Land

Pursuant to the CAA, a conservation authority has the power to acquire any land that it may require by purchase, lease or otherwise, and to sell, lease or otherwise dispose of such land that it acquired. However, if the land was acquired using a provincial grant granted to the authority by the MNRF, the disposition of such land is subject to the approval of the MNRF unless:

1. The disposition is for provincial or municipal infrastructure and utility purposes;
2. The Province or municipality, or the provincial or municipal agencies, boards, or commissions affected by the dispositions have approved it; and
3. The Minister is informed of the disposition by the authority.

This process was amended by Bill 23 in an effort to streamline administrative land disposition, potentially making it easier and cheaper for conservation authorities to dispose of excess lands that may be suitable for housing or other types of development.

Effective on January 1, 2023, the amendments will permit a conservation authority to dispose of MNRF- granted land as long as it provides notice to the MNRF of the proposed disposition at least 90 days before such disposition. No notice is required if the above criteria a), b) and c) are met. If an authority is required to consult the public and post a notice of the consultation on its website, the authority’s notice to the MNRF must describe how the comments received during the public consultation were considered by the authority prior to the disposition.

Finally, if the MNRF receives notice from the conservation authority, it may, within 90 days after receiving notice, direct the authority to apply a specified share of the proceeds of the disposition to support programs and services provided by the authority that support their core mandate as outlined in Ontario Regulation 686/21 made pursuant to the CAA.

Conclusion

The above-outlined amendments introduced by Bill 23 to the CAA will change a conservation authority’s role in the development application process significantly.

If you wish to discuss how this impacts your development application, please do not hesitate to contact the team at Davies Howe LLP.

To learn about Bill 23’s changes to other Acts, check out parts 1-4 of the series as well as the forthcoming part 6, which outlines the final amendments to the Bill made by the Standing Committee before the Bill received royal assent.

*Originally posted on November 16, 2022, updated on November 30, 2022.

On November 28, 2022, Bill 23, More Homes Built Faster, 2022, received royal assent. After its introduction on October 26, Bill 23 was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) and subsequently amended. The below blog has been updated to reflect these amendments.

Part 4 of this series will explore the changes Bill 23, More Homes Built Faster Act, 2022, makes to the Ontario Heritage Act (the “OHA”). These changes to the OHA are set out in Schedule 6 of Bill 23 and were not amended by the Committee from what was originally proposed. All of these changes will become effective on a date to be proclaimed by the Lieutenant Governor in Council (“LG”).

Highlights include:

1. Increased restrictions on a municipality’s ability to issue a notice of intention to designate a property;

2. Prescribed criteria to designate properties;

3. Stricter rules on requirements to remove properties from the register;

4. Prescribed criteria to designate Heritage Conservation Districts; and

5. Permitting retroactive ministerial review of provincial heritage properties.

Restrictions on Notice of Intention to Designate

Bill 23 removed a municipality’s ability to issue a notice of intention to designate a property under Part IV of the OHA, unless the property is already listed on the register on such date to be proclaimed.

Bill 108, The More Homes, More Choice Act, 2019, recently amended the OHA to establish a 90-day timeline for issuing a notice of intention to designate a property after a prescribed event occurred, which prescribed events include instances where Council has given notice of a complete application for an official plan amendment, a zoning by-law amendment or a draft plan of subdivision in respect of the property. The Province stated that its intention for this limitation was to provide certainty to development proponents and to encourage discussions about potential designations at an early stage.

While this process will remain for the prescribed events that occur on or after July 1, 2021, for the prescribed events that occur on or after the date to be proclaimed, municipalities will be precluded from issuing a notice of intention to designate a property altogether, unless the property is listed on the municipal heritage registrar before the date the prescribed event occurs. If the property is listed on the heritage register at this time, then the municipality has the 90-day timeline to issue a notice of intention to designate the property.

Increased Criteria for Designation

The Bill 23 amendments will require (once effective) that a property meet additional criteria, as prescribed in regulation, to be designated as a heritage property. Currently, Council must only believe that the property is of cultural heritage value or interest. This change would be implemented through amendments to Ontario Regulation 0/06.

Removal of Properties from the Register

          Notice of Intention Given

On a date to be proclaimed, Bill 23 will require municipalities to remove properties from the heritage register if the municipality has given a notice of intention to designate the property and any of the following circumstances exist:

1. The council withdraws its notice of intention to designate;

2. The council does not pass a by-law designating the property within 120 days after the notice of intention to designate is publicized, or in other prescribed circumstances;

3. A by-law passed by council is subject to an appeal to the Ontario Land Tribunal, where the Tribunal repeals the by-law or directs that the by-law be repealed.

          Notice of Intention NOT Given

In the case of a property included in the register on or after a day to be proclaimed by the LG, if the municipality does not issue a notice of intention to designate within two years of including the property on the registrar, the municipality shall remove the property from the register.

In the case of a property included in the register under a previous version of the OHA by such day to be proclaimed, if the municipality does not issue a notice of intention to designate within two years of this day, then the property shall be removed from the registry.

          Once Removed From Register

If a property is removed from the register, Council may not include the property again for a period of 5 years, commencing either the day the event occurs (withdrawal of notice of intention or repeal of by-laws); the day the property is included on the register (properties included after the proclamation date); or, the proclamation date (properties on the register now).

These new provisions, once in effect, will reduce the number of properties included on heritage registers, by limiting the register to properties that are designated, or in the process of seeking designation.

Prescribed Criteria to Designate Heritage Conservation Districts

On a day to be proclaimed, Bill 23 will authorize the LG to prescribe additional criteria that a municipality must meet in order to designate an area as a Heritage Conservation District (“HCD”).

Currently, Council of the municipality may designate an area as an HCD if the municipality has official plan policies that contain provisions relating to the establishment of an HCD. However, amendments introduced by Bill 23 require that if criteria for demonstrating whether an area of a municipality is of cultural heritage value or interest are prescribed, then the subject area of the municipality must meet these criteria in order to be designated as an HCD, in addition to the requirement that the municipal official plan contain policies relating to the establishment of an HCD. Where these criteria are prescribed, the required HCD plan must contain a statement explaining, among other things, the cultural heritage value or interest of the HCD and how the HCD meets the prescribed criteria.

The Bill also permits the Minister of Citizenship and Multiculturalism (“Minister”) to prescribe a process for municipalities to amend or repeal HCD by-laws.

Provincial Heritage Properties

Currently, the Minister may prepare heritage standards and guidelines (“S&Gs”) for the identification, protection, maintenance, use and disposal of property that is owned by the Crown or occupied by a ministry or prescribed public body that has cultural heritage value or interest. The S&Gs were enacted on July 1, 2010 and apply to all Ontario government ministries and prescribed public bodies with properties in their ownership or under their control. Ministries and public bodies use the S&Gs to designate properties as provincial heritage properties, which they believe to be important to the social, economic and cultural well-being of Ontario communities. For example, many of Ontario’s courthouses and hospitals, bridges and provincial parks are designated as provincial heritage properties.

Amendments to the OHA (once proclaimed) will authorize the Minister to set out a process in revised S&Gs, which permit it to review determinations made by other ministries or prescribed public bodies with respect to provincial heritage properties. Where this process is provided, the Minister would be authorized to confirm or revise the ministry or public body’s determination, notwithstanding the date that it was made. For clarity, this means that the Minister would be able to retroactively review a ministry or public body’s determination.

In addition, these amendments will permit the LG to, by order, exempt the Crown, a ministry or a prescribed public body from having to comply with the S&Gs in respect of a particular property where the LG opines that such exemption could potentially advance one or more of the following provincial priorities:

1. Transit;

2. Housing;

3. Health and Long-Term Care;

4. Other Infrastructure; and

5. Such other priorities as may be prescribed by regulation.

Conclusion

As most of these changes come into effect on a date to be proclaimed, we will continue to monitor how these changes are proposed to be implemented.

To read more about Bill 23, check out parts 1-6 of the Davies Howe Bill 23 blog-series.

If you wish to discuss how this may impact your development, please do not hesitate to contact the team at Davies Howe LLP.