Davies Howe LLP Recognized in Novae Res Urbis Top Ten Development Law Firm
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.
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.
Bill 23 – Part 5: Streamlining Approvals under the Conservation Authorities Act
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.
- 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.
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:
- The disposition is for provincial or municipal infrastructure and utility purposes;
- The Province or municipality, or the provincial or municipal agencies, boards, or commissions affected by the dispositions have approved it; and
- 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.
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.
Bill 23 – Part 4: Changes to Heritage Planning
*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”).
- Increased restrictions on a municipality’s ability to issue a notice of intention to designate a property;
- Prescribed criteria to designate properties;
- Stricter rules on requirements to remove properties from the register;
- Prescribed criteria to designate Heritage Conservation Districts; and
- 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:
- The council withdraws its notice of intention to designate;
- 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;
- 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:
- Health and Long-Term Care;
- Other Infrastructure; and
- Such other priorities as may be prescribed by regulation.
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.
Davies Howe LLP welcomes, David Fenicky, Samantha Lampert and Andy Margaritis to the partnership. Congratulations!
Bill 23 – Part 3: New Powers for the Ontario Land Tribunal
*Originally posted on November 1, 2022, updated on November 30, 2022.
On October 25, 2022, the Province introduced Bill 23, More Homes Built Faster, 2022, which received royal assent on November 28, 2022. The Bill was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) on October 31, 2022 and subsequently amended. The below blog has been updated to reflect these amendments.
This is Part 3 of Davies Howe LLP’s Bill 23 blog-series, which focuses on the changes to the Ontario Land Tribunal Act, 2021 (the “OLT Act”).
The OLT Act governs the process and procedures of the Ontario Land Tribunal (the “Tribunal”), which plays a critical role in Ontario’s land use planning system. It is thus not surprising that Bill 23 introduced various amendments to the OLT Act itself.
New Powers for the Tribunal to Dismiss Appeals Without Hearings
Currently, on a motion of a party or on its own initiative, the Tribunal may dismiss a proceeding without a hearing (subject to notice requirements) if:
- The party who brought the proceeding did not pay the required fees;
- The party did not respond to a request by the Tribunal for further information;
- The Tribunal is of the opinion that the proceeding had no reasonable prospect of success;
- The Tribunal is of the opinion that the proceeding is:
- Frivolous, vexatious or commenced in bad faith;
- Relates to matters outside the Tribunal’s jurisdiction; or
- Some aspect of statutory requirements for bringing the proceeding has not been met; and
- In any other circumstance provided for under any Act.
On a date to be proclaimed by the Lieutenant Governor in Councillor (“LG”), the following additional grounds for the Tribunal to dismiss a proceeding will come into effect:
- If the Tribunal is of the opinion that the party who brought the proceeding has contributed to undue delay.
- If the Tribunal is of the opinion that a party failed to comply with an order of the Tribunal in the proceeding.
These new powers are evidence of Provincial direction to ensure that Tribunal proceedings proceed expeditiously and in an organized fashion.
Direction to Award Costs
The Tribunal is currently permitted to order a party to a proceeding to pay costs in accordance with its rules but does so cautiously and sparingly. On a date to be proclaimed by the LG, an additional subsection to the OLT Act will become effective that expressly states the Tribunal has the power to order an unsuccessful party to pay a successful party’s costs. The Province has indicated that the purpose of this amendment is to encourage parties to reach an agreement without going to the Tribunal.
Expanded Regulation-Making Authority
Bill 23 expanded the LG’s regulation-making power to permit it to make regulations requiring the Tribunal to prioritize the resolution of specified classes of proceedings. These classes of proceedings will be specified by regulation. This change will also become effective on a day to be proclaimed by the LG. The Province has indicated that they intend to prioritize OLT proceedings which create the most housing. The proposed Regulation will be developed after consultations with affected ministries.
Bill 23 also clarified aspects of the Attorney General’s (the “AG”) regulation-making power with respect to regulations regarding the governing practices and procedures of the Tribunal. The amendment specifies that the AG may also make regulations prescribing service standards with respect to Tribunal case resolution (i.e., specified timing and steps). Once drafted, the proposed new Regulation will be posted on the Regulatory Registry for consultation.
If/when these timelines are prescribed by the AG, and the Tribunal fails to comply with such prescribed timeline, this does not invalidate the proceeding nor can it be grounds for an order or decision of the Tribunal to be set aside. However, the AG may request that the Tribunal report to the AG regarding compliance (or lack thereof) with the prescribed timelines.
The Province has also indicated that it will invest in more adjudicators and other resources to permit the Tribunal to speed up proceedings, resolve cases faster, hear priority projects sooner and reduce the number of outstanding cases so that more housing can be created.
If you wish to discuss how these changes may impact your current or future Tribunal-proceeding, please do not hesitate to contact the team at Davies Howe LLP.
The next blog-series, Part 4, will outline the changes to the Ontario Heritage Act.
Bill 23 – Part 2: Increased Cost Certainty for Development-Related Charges
*Originally posted on November 1, 2022, updated on November 30, 2022.
On October 25, 2022, the Province introduced Bill 23, More Homes Built Faster, 2022, which received royal assent on November 28, 2022. As the Bill was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) on October 31, 2022 and subsequently amended, the below blog has been updated to reflect these amendments.
Bill 23 amended nine statutes and introduced a new statute regarding servicing infrastructure in York and Durham Regions. These changes will have significant impacts on the land development industry and on how growth is financed.
This post constitutes Part 2 of Davies Howe LLP’s Bill 23 series, which focuses on changes to the Province’s “Growth Funding Tools”, consisting of development charges, parkland dedication rates and community benefit charges.
Development Charges (“DCs”)
Bill 23 implements both immediate and ongoing changes aimed at reducing DCs. Notable amendments to the Development Charges Act (the “DCA”) include:
Limited Market Rental Housing Exemption
Bill 23 introduced a limited exemption for 1 new rental unit or 1% of the existing residential units (whichever is greater) in existing rental buildings containing four or more rental units. This exemption is not related to the unit being affordable, attainable or developed by a non-profit.
Additional Low-Rise Unit Exemption
Bill 23 enacted a series of exemptions for new units in existing and new single detached, semi-detached and rowhouses up to a maximum of three total units, which align with the zoning changes discussed in Part 1 of this blog-series, permitting up to three units on a residential lot within those same building types.
Affordable and Attainable Housing Exemption
On a date to be proclaimed by the Lieutenant Governor in Council, exemptions from DCs are provided for affordable housing where values will be below average, transactions are “arm’s length” and a specialized agreement is entered into. The Province has stated that it hopes this exemption will encourage the development of affordable residential units.
Attainable housing, which is expected to be defined through future regulation, will also be granted an exemption when a specialized agreement is entered into.
Non-Profit Housing and Inclusionary Zoning Exemption
Inclusionary zoning mandated residential units as well as non-profit housing developments undertaken by certain types of non-profit housing organizations are now exempt from DCs. For non-profit housing, the exemption is retroactive to a limited extent in that future installment payments under s. 26.1 of the DCA will be cancelled.
Discount for Purpose Built Rentals
A tiered discount has been enacted for DCs levied on “purpose-built rentals”, meaning a building or structure with four or more dwelling units all intended for use as residential rented premises. The larger the unit, the higher the discount, with a 15% discount for a 1-bedroom unit, 20% for a 2-bedroom unit and 25% for units with three or more bedrooms. This discount applies in addition to the applicable DC interest rate freeze.
Discount on DCs and Expiry of By-laws
DC rates in a By-law enacted as of January 1, 2022 will now be phased in over a 5-year period. In year one, the maximum DC that could be charged would be discounted at 20%. This discount would decrease by 5% each year until year 5, where the full rates would apply. This is retroactive in the sense that DCs already imposed on development by a DC by-law passed on or after January 1, 2022 will still receive this 20% discount provided that the DCs were not payable before November 28, 2022.
Longer By-law Review Interval
Before Bill 23, DC By-laws were reviewed by the imposing municipality every 5 years. Reviews are followed by new DC By-laws, which have led to steep DC increases in some jurisdictions in recent years. Now, this mandatory review period is 10 years. While municipalities are permitted to review DC by-laws on a more frequent basis, limiting reviews to once per 10 years allows municipalities to charge a non-discounted DC rate in years 5 through 10.
DC Interest Rate
Bill 23 established a maximum interest rate, based on an average of prime rates published by five large Canadian banks, plus 1.0% adjusted quarterly. This rate applies where DCs are paid by installment under s. 26.1 of the DCA and during the “freeze” period under s. 26.2.
DC-Eligible Capital Costs
Minor reductions in the capital costs are also now recoverable through DCs. Bill 23 eliminated “housing services” and certain study costs from the list of DC eligible services. Additional eliminations are possible through regulation.
Historic Level of Service from 10 to 15 years
Bill 23 changed the historical service level used to calculate capital costs eligible for recovery through DCs from the current 10 years to 15 years. This applies to the passage of all new DC by-laws, (with an exception for transit, which is currently excluded by the Province’s DC Regulation) and is expected to have a moderating effect on the maximum DC chargeable in a given service area.
Increased Transparency in Use of DC Funds
Bill 23 requires municipalities to allocate or spend a minimum of 60% of their DC reserve balance on “priority services” (which will include water, wastewater and roads) at the start of each year. Additional priority services may be prescribed in the Regulations.
To provide greater cost certainty and reduce expenses associated with development, Bill 23 also revised the parkland dedication requirements under the Planning Act including:
Discounts on Affordable and Attainable Residential Units
On a date to be proclaimed by the LG, a new formula will be used to reduce the maximum amount of land dedication required where affordable or attainable units are provided, such that the maximum amount of land that can be required is reduced by a factor of the proportion of new dwellings excluding affordable and attainable units and the total number of dwellings proposed (i.e. non-affordable or attainable residential units / total residential units).
If the alternative (unit based) parkland rate is applied, affordable and attainable units do not contribute towards the unit count.
Non-Profit Housing Exemption
Non-profit housing developments are now exempt from parkland contributions. Non-profit housing developments are proposed to be defined using the same definition as that introduced to the DCA through Bill 23.
Low-Rise Additional Unit Exemption
Consistent with the changes to official plan policy and zoning by-laws to permit additional units in existing single detached, semi-detached and rowhouses, parkland contributions are no longer required for new units in those same building types up to a maximum of three units.
Maximum Alternative Parkland Dedication
The maximum alternative dedication rate was reduced from a rate of 1 hectare per 300 dwelling units to 1 hectare per 600 net residential units. For cash-in-lieu, the rate was reduced from 1 hectare per 500 dwelling units to 1 hectare per 1000 net residential units. Notably, the definition of “dwelling units” was removed and “net residential units” will be determined by subtracting the existing residential units from the proposed residential units. This represents a 50% decrease from the current maximums.
Determining Parkland Dedication Rates
Through Bill 23, parkland dedication rates will now be set at the time a site plan or zoning by-law amendment application is made. These provisions are modeled on the existing DC freeze provisions. A freeze on the applicable rates would remain in effect for up to two years following approval of the application, until building permits are obtained. The freeze period rates will become unavailable if building permits are not obtained within the allotted two years.
In addition, only new units and developments are now subject to parkland dedication requirements.
Parkland Credits for Encumbered Land
On a date to be proclaimed by the LG, Bill 23 will amend the Planning Act to allow for “encumbered land” (i.e. land subject to an easement or having below grade infrastructure) and privately owned public spaces (“POPs”) to count towards parkland dedication requirements. Applicants will have increased control over the land they intend to convey parkland dedication.
Appeal Regarding Parkland Characteristics
Also on a date to be proclaimed by the LG, a new appeal will be introduced to allow proponents to appeal the refusal of a municipality to accept the conveyance of land as proposed by the proponent within 20 days of notice being given.
Requirements for Municipalities
Municipalities are now required to develop a parks plan prior to passing a new parkland dedication by-law in situations where the municipality plans to use the standard parkland dedication rate. The standard rate requires that the maximum land to be conveyed not exceed 2% for development or redevelopment for commercial or industrial purposes and 5% for all other types of development.
Municipalities are also be required to allocate or spend a minimum of 60% of their parkland reserve balance at the start of each year.
Community Benefits Charges (“CBCs”)
Bill 23’s amendments were introduced to provide increased clarity surrounding maximum CBC rates. Maximum rates are now based only on the value of new development, as opposed to total property values. To achieve this, a new formula was introduced that factors out the floor area of existing buildings and structures.
Similarly, on a day to be proclaimed by the LG, another new formula will become effective that factors out the floor area of “affordable residential units” or “attainable residential units” (as defined in accordance with the proposed regulation to be prescribed under DCA) from the valuation equation.
Inclusionary Zoning (“IZ”)
Amendments are proposed to Ontario Regulation 232/18: Inclusionary Zoning created under the Planning Act (the “Regulation”) that propose to establish an upper limit of 5% on the number of units that may be required to be set aside as affordable and a maximum affordability period of 25 years. Currently, the municipality has the discretion to set the limit as well as the period of affordability over which the affordable housing units would be required to remain affordable.
The Regulation is also proposed to prescribe the procedure to determine the lowest price or rent that can be required for IZ units, which is proposed to be 80% of the average resale purchase price of ownership units or 80% of the average market rent for rental units.
Affordable housing units in a development subject to IZ would also be subject to certain exemptions from DCs, parkland dedication requirements and CBCs.
For more information on Bill 23’s changes to Ontario’s planning regime, please visit Parts 1 to 6 of the blog-series.
If you wish to discuss how this implements your development or appeal rights, please do not hesitate to contact the team at Davies Howe LLP.
Bill 23 – Part 1: Streamlined Approvals and More Residential Permissions
*Originally posted on October 28, 2022, updated on November 30, 2022.
On October 25, 2022, the Province introduced Bill 23, More Homes Built Faster, 2022, which received royal assent on November 28, 2022. The Bill was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) on October 31, 2022, and was subsequently amended. The below blog has been updated to reflect these amendments.
Bill 23 is the third installment in the Province’s Housing Supply Action Plan, following Bill 108, More Home for Everyone, 2019, and Bill 109, More Homes, More Choices, 2022. Bill 23 introduces the most sweeping changes yet.
Bill 23 amended nine different statutes and introduced a new statute regarding the construction of servicing infrastructure in the Region of Durham and York. As many of these changes will have significant impacts on the land development process, this blog post constitutes Part 1 of Davies Howe LLP’s Bill 23 series. Part 1 focuses on the Province’s changes to the Planning Act (the “Act”) and provincial policy documents that are proposed to streamline planning approvals and increase the supply of housing. Below are some of the most significant highlights:
Removal of Third-Party Appeals
One of the most significant changes is the removal of third-party appeals of a decision on a minor variance or consent application. This is implemented by various amendments to the Act, the most obvious being the new definition of “specified persons”, which mirrors the definition that was used for appeals of draft plans of subdivision (introduced by Bill 108), and includes:
- A corporation operating an electric utility in the local municipality;
- Ontario Power Generation Inc.;
- Hydro One Inc.;
- A company operating a:
- natural gas utility;
- an oil or natural gas pipeline;
- a railway line; or
- a telecommunication infrastructure provider,
provided the company is in the local municipality or planning area to which the relevant planning matter would apply; or
- A person required to prepare a risk and safety management plan under Ontario Regulation 211/01 (Propane Storage and Handling) pursuant to the Technical Standards and Safety Act, with some additional requirements.
Previously, a person or public body had the right to appeal decisions regarding official plans, zoning by-laws, consents and minor variances, if the person or public body had made oral submissions at a public meeting or written submissions to the municipality before the respective decision was made. A “person” is not defined by the Act. While this right of appeal remains for decisions regarding official plans and zoning by-laws (note that Bill 23 originally proposed to remove all of these third-party appeal rights), for decisions on plans of subdivision, minor variance applications and consent applications, only the applicant, the municipality, the Minister and such “specified person” is permitted to appeal.
These amendments are retroactive in that a third-party appeal of a decision regarding a minor variance or consent application would be dismissed unless a hearing on the merits was scheduled before October 25, 2022. A hearing on the merits does not include dispute resolution processes or case management conferences. However, an adjournment or rescheduling of a previously scheduled hearing does not impact the third party’s appeal.
In addition to the elimination of third-party appeals, the changes introduced by Bill 139 to the Act and the Conservations Authorities Act that limit the appeal rights of conservation authorities will be re-enacted and effective on January 1, 2023.
Additional Residential Unit Permissions and Building Homes Near Transit
The Province intends to build 1.5 million new homes in ten years. One effort to increase the number of homes is to allow property owners to add new units within their existing homes. To facilitate this intention, various sections of the Act were amended to permit up to three residential units as-of-right. This means that one lot may contain three residential units, either all in the primary unit, or two in the primary unit and one in an ancillary unit. Notably, these new subsections only apply as-of-right to a “parcel of urban residential land”, which is defined as a parcel of land that is within a settlement area where residential use is permitted by by-law and that is served by full municipal water and sewage services. The amendments do not permit an official plan or zoning by-law to require the provision of more than one parking space or to prescribe a minimum floor area of the residential units. These units must still be compliant with the building code and municipal by-laws. However, they are exempt from development charges and parkland dedication fees (see Part 2 for more information on development charges and parkland fees).
In addition, existing and future official plan policies, zoning by-laws and ministerial zoning order provisions that do not permit three residential units on a parcel of urban residential land, regulate a minimum floor area of a residential unit or require more than one parking space per residential unit are of no effect as of November 28, 2022.
Additional subsections were also added that require municipalities to update their zoning by-laws to conform with official plan policies regarding major transit station areas within one year of the policies coming into effect. The Province has indicated that the purpose of these new subsections is so that transit-supportive densities will be permitted in the zoning by-law as-of-right. If a municipality does not update its zoning within one year, an appeal may be filed regarding these policies, notwithstanding that appeals of zoning by-laws related to protected major transit station areas are otherwise not permitted, except in narrow circumstances.
Removal of Powers from Upper-Tiers
On a date to be proclaimed by the Lieutenant Governor in Council (“LG”) amendments to the Act provide for two different classes of upper-tier municipalities: those which have planning responsibilities and those which do not. Various amendments were made to provide lower-tier municipalities with planning functions when they form part of an upper-tier municipality that is designated as being without planning responsibilities. This removes planning policy and approval responsibilities from certain upper-tier municipalities who currently possess these responsibilities, including the rights to appeal decisions regarding official plans, zoning by-laws, minor variances, draft plans of subdivision and consents. Accordingly, the Minister of Municipal Affairs and Housing (the “Minister”) would become the approval authority for these lower tier official plans and official plan amendments. The Minister’s decision is not subject to appeal.
While the LG may prescribe upper-tier municipalities without planning responsibilities by regulation, Bill 23 has initially included the County of Simcoe as well as the Regions of Durham, Halton, Niagara, Peel, Waterloo and York.
Other Streamlining Proposals: Site Plan Control, Public Meetings, Rental Replacement and Provincial Policy Documents
Various amendments were passed to the City of Toronto Act, 2006 (“COTA”) and the Act with respect to site plan control areas. In particular, matters relating to exterior design, which currently include the character, scale, appearance and design features of buildings, are proposed to be excluded from site plan control. However, matters relating to building construction required by a by-law under specified sections of the Municipal Act and the COTA, including green roofs, alternative roof services or other environmental standards in the construction of buildings, are still permitted to be controlled by site plan. Further, while the appearance of elements, facilities and works on the land under a municipality’s jurisdiction are not subject to site plan control, there is an exception where the appearance impacts matters of health, safety, accessibility, sustainable design or the protection of adjoining lands. Essentially, exterior design is no longer subject to site plan control except for environmental exterior design features.
Residential development of 10 units or less is also excluded from site plan control, except for the development of land lease communities.
Previously, the Act required a public meeting to be held on plan of subdivision applications. Bill 23 removed this public meeting requirement.
On a day to be proclaimed by the LG, section 23 of the Act will provide the Minister with more authority to amend official plans if they are of the opinion that the plan is likely to adversely affect a matter of provincial interest. Currently, the Minister may amend official plans if the provincial interest is set out in a policy statement issued under subsection 3(1). They are also required to advise council about the issue and provide council with the opportunity to resolve it before amending the plan by order. However, these requirements will be removed. In addition, Bill 23 removes the possibility of the Minister to request that the Ontario Land Tribunal hold a hearing on a proposed amendment to resolve such matter of provincial interest.
Both the COTA and the Municipal Act were amended to authorize the Minister to enact regulations related to the replacement of rental housing and when it is proposed to be demolished or converted. Municipalities may enact by-laws to regulate rental housing replacement. Now, the Minister could use this authority to limit the powers of a local municipality to regulate the demolition and conversion of residential rental properties. This is particularly relevant in the cities of Toronto and Mississauga, where these by-laws already exist.
The Province is also proposing multiple policy document changes, the most significant being the integration of A Place to Grow: Growth Plan for the Greater Golden Horseshoe and the Provincial Policy Statement into one province-wide planning policy instrument. The proposal is posted here, and the comment period closes on December 30, 2022. The Province is seeking input on how to enable municipalities to approve housing faster and increase housing supply. It proposes to discuss the following core elements:
- Residential land supply;
- Attainable housing supply mix;
- Growth management;
- Environment and Natural Resources;
- Community infrastructure; and
- Streamlined planning framework.
For more information on Bill 23’s changes to Ontario’s planning regime, please visit Parts 2 to 6 of the blog-series.
If you wish to discuss how this implements your development or appeal rights, please do not hesitate to contact the team at Davies Howe LLP.
The Ontario Line
What is the Ontario Line?
The Ontario Line is a proposed expansion of the transit infrastructure in the GTA that will run through the heart of downtown Toronto, connecting Exhibition Place in the south-west to the Ontario Science Centre in the north-east. The 15.6-kilometre, 15-stop subway line will connect to the Yonge-University Spadina Line (Line 1) and the Bloor Line (Line 2), GO Train lines and the Eglinton Crosstown LRT, forming an integrated transit network that proposes to make getting around the city and surrounding area easier and more intuitive.
How does this affect me?
Metrolinx has determined that it needs to acquire 906 properties to support the construction of the Ontario Line. Some properties will only be needed temporarily, while others will be acquired permanently. In some cases, only parts of the properties will be needed, while the entirety of others will be needed. In some cases, only an underground interest will be needed.
By now, Metrolinx or a representative has reached out to owners of every property it proposes to acquire – and their tenants, where possible – to advise of its plans and determine next steps. If yours is one of those properties, you have options.
What are the implications?
First, the bad news: The Expropriations Act (the “Act”) allows an expropriating authority – in this case, Metrolinx – to acquire land required for a public work or other public purpose without the consent of the person whose property or interest in the property is being acquired. The process by which Metrolinx may legally acquire these properties is governed by the Act and there is no effective mechanism for property owners to fight the expropriation.
There is a silver lining: The Act provides that an expropriating authority must pay the owner the fair market value based on the highest and best use of the land that it intends to expropriate. When making its offer, Metrolinx must serve an appraisal report, setting out the basis for its valuation. Metrolinx must also reimburse the reasonable costs incurred by a landowner as a result of the expropriation.
What are my options?
Despite the mandatory nature of the expropriation process, you are not obligated to accept the first offer Metrolinx makes for your property.
Davies Howe LLP has recovered millions of dollars in additional compensation for affected landowners and tenants throughout Ontario and the GTA for this and other projects.
If you have received an offer of compensation from Metrolinx or any other expropriating authority and would like to better understand your rights, contact Ava Kanner at 416.977.7088 extension 243 or by email at firstname.lastname@example.org.
Bill 109 – More Homes for Everyone, 2022 Receives Royal Assent
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.
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.