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On June 6, 2019, Bill 108, the More Homes, More Choices Act received Royal Assent. The Bill, introduced by the Ford government, amends thirteen different statutes that impact municipalities and land use planning processes, including changes to the Planning Act and appeals process. This will change, amongst other things, how planning and development decisions are made, appealed and decided.
Grounds for Appeal and ‘Good Planning Test’
Bill 139, the Building Better Communities and Conserving Watersheds Act, 2017, enacted by the previous provincial government, removed the automatic right of most individuals to have the Ontario Municipal Board hear appeals of zoning by-laws, zoning by-law amendment applications, Official Plan Amendments and applications. Grounds for appeal were limited to a failure to conform with provincial plans, official plans or failure to be consistent with provincial policy statements.
These restrictions have now been removed and appeals will, as before Bill 139, be available for zoning by-laws, zoning by-law amendments, Official Plan Amendments and applications in most cases. While the conformity/consistency test remains, it appears as though the broader “good planning test” has been reinstated.
There will also be a return to the more cost-effective single hearing format and de novo hearings, which are intended to shorten the appeals process. On appeal, the tribunal is empowered to approve, refuse to approve, or make modification to all or part of the official plan, official plan amendment, zoning by-law or zoning by-law amendment. The tribunal is no longer required to send a matter back to the original decision maker if it determines that the new appeal test has been met.
In addition, the Ontario government proposes to invest $1.4 million in the hiring of LPAT members to speed up the adjudication of appeals.
Bill 108 restores provisions in place before Bill 139 that govern the introduction of new information and material which was not previously put before council or the relevant approval authority.
Now, either by its own initiative or on a motion, the tribunal may consider whether such information would have materially affected the council’s hearing. If so, it provides an opportunity for council to reconsider its decision and make a written recommendation to the tribunal. The tribunal must consider the council’s written recommendation when rendering its decision, providing that the council’s recommendation is received within the prescribed time period.
There will also be shortened timelines for decisions relating to official plans, zoning by-laws and plans of subdivision (before a right to appeal arises). The reduction for decision timelines on applications for official plan amendments (120 days), zoning by-law amendments (90 days, except where concurrent with official plan amendment for some proposal) and plans of subdivision (120 days) applies to complete applications submitted after June 6, 2019.
Right to Appeal Decisions
Bill 108 restricts the right to appeal the failure of an approval authority from making a decision on its Official Plan or decisions on plans of subdivisions to certain key participants in the process.
In the case of an Official Plan non-decision, an appeal must be made within 120 days by either the municipality that adopted the plan, the Minister or, in the case of an adopted amendment in response to the application, the applicant.
Appeal rights for decisions pertaining to subdivision plans are now limited to the province, the municipality, applicant, and utility companies. Previously, appeals of such decisions could be made by any person who made oral submissions at a public meeting or who made a written submission to the approval authority before the decision was made.
The restrictions placed on the rights of third parties to appeal will potentially speed up approvals. However, eliminating the appeal rights of concerned neighbours, heritage groups and community organizations will remove often-valuable contributions to the planning decision process. Such groups and individuals will now need to ensure that their input is made at the OPA or rezoning stage.
What Stays the Same
Bill 108 is not a complete reversal of Bill 139. Mandatory case management conferences for certain Planning Act appeals remains. Case Management Conferences facilitate a more efficient hearing and provide opportunities for settlement, mediation or other dispute resolution processes.
What Does All of this Mean?
The goal of Bill 108 is to shorten timelines for approvals for decisions relating to official plans, zoning by-laws and plans of subdivision, streamline the process for appeals, and to empower the tribunal with the right to make decisions on appeal.
We look favourably upon the Bill 108 amendments. The Ontario Municipal Board, that pre-dated Bill 139, was clearly in need of reform, the process was overly slow and decisions could take many years, and stall development. However, the LPAT rules instituted by the Wynne government swung the pendulum too far in the opposite direction. The tribunal was handcuffed, and it was tremendously difficult to win appeals, or even introduce new evidence to aid in setting aside a decision of a municipality. The political whims of a municipality were too easily favoured under this format.
Under Bill 108, the return of de novo hearings and the ability to introduce new evidence should help level the playing field and ensure that planning decisions are truly representative of “best planning” practices.
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