Bill 139, Building Better Communities and Conserving Watersheds Act, 2017 (“Bill 139”) received its first reading in the provincial legislature on May 30, 2017. Bill 139 proposes to establish the Local Planning Appeal Tribunal (the “Tribunal”) which replaces the Ontario Municipal Board. The Tribunal will hear Planning Act appeals of decisions regarding official plans, zoning by-laws and plans of subdivisions. One major change is that a case management conference is mandatory in all such appeals, which will include discussion of opportunities for settlement, including the possible use of mediation or other dispute resolution processes. Also, persons other than the appellant or the municipality or approval authority who wish to participate in an appeal must make written submissions to the Tribunal.
Bill 139 also provides for new appeal processes under the Planning Act specifically with respect to official plans, official plan amendments and zoning by-laws. Such appeals may only be made on the basis that the decision is (1) inconsistent with a provincial policy statement, (2) fails to conform or conflicts with a provincial plan or (3) fails to conform with the upper-tier municipality’s official plan. The Tribunal shall dismiss the appeal unless it determines that one of the three tests has been demonstrated. Where an appeal is allowed by the Tribunal, the municipality has a second opportunity to make a decision. If that decision is appealed and the Tribunal again determines that the new standard of review is not met, the Tribunal would make another decision. These proposed provisions will serve to eliminate de novo hearings in that the Tribunal would only have authority to overturn a municipal decision if the decision fails to meet the new standard of review. The Tribunal will not have the authority to make a decision independent of the original decision as was the case with the Ontario Municipal Board.
If Bill 139 is approved, it will significantly change the climate for Planning Act appeals in the province of Ontario. It will no doubt take some time for stakeholders to appreciate the complex changes being proposed.
Daniel & Partners LLP has acted on behalf of municipalities, landowners, developers, financial institutions, and public interest groups in actions before the Ontario Municipal Board, the Environmental Review Tribunal, the Niagara Escarpment Commission, and in the Courts. We will be closely watching the development of this legislation so that we can continue to provide our clients with the representation that they need.
Blog post written by Associate Lawyer Robert Di Lallo.