Important amendments to the Planning Act will come into effect July 1, 2016. These changes were set in motion by the Smart Growth for Our Communities Act (the “Act“), passed last December. The Act is intended to improve the way municipalities make planning decisions; to allow for more municipal independence in resolving disputes; to help municipalities fund their growth; to give residents a greater say in how their communities grow; to offer a more predictable planning and appeal process; to make the development charges and land use planning system more predictable, transparent and accountable, and; to protect and promote green spaces. Set out below are several notable changes to the Planning Act.
Changes to Official Plan Requirements and Official Plan Reviews
Under section 26(1) of the existing Planning Act, municipal Official Plans must be updated every five years to conform to provincial plans, matters of provincial interest, and policy statements. This review period will be extended to 10 years once a new Official Plan comes into effect. A five year review period begins after this initial review, unless the plan has been replaced by another new Official Plan. Additionally, municipalities will be given the discretion to combine their conformity amendments with revisions to the Official Plan.
Amendments to the Planning Act also place emphasis on improving public engagement through locally designed consultation policies. Under section 16(1) of the Planning Act, Official Plans will be required to contain a description of the measures and procedures used to inform and obtain the views of the public with respect to proposed amendments or revisions of the plan, zoning by-laws, plans of subdivision and consents. This is in addition to the current section 16(1) provisions for the management of physical change and the effects on social, economic and the natural environment to be reflected in the goals, objectives and policies set out in the Official Plan.
The province has also reinforced the relationship between upper-tier Official Plans and lower-tier Official Plans. The Act specifically restricts the approval by an approval authority of a lower tier Official Plan if any part fails to conform to an upper-tier official plan. Approval is also prohibited where, within 180 days of the lower-tier Official Plan being adopted, non-conformity arises due to the adoption of an upper-tier Official Plan or an amendment as part of a five-year review. The approval authority may also freeze the appeal period for a non-decision in respect to a lower-tier Official Plan if, within 180 days of receiving an Official Plan, the authority gives the opinion that the plan does not conform. This opinion is not subject to review by the Ontario Municipal Board (OMB).
Restrictions to Appeals and Amendments
Certain types of appeals will soon be prohibited. Under the current Planning Act, a planning decision may be appealed on the broad grounds that it lacks conformity or conflicts with a Provincial Policy. The Act will soon prohibit these global appeals once a new Official Plan is adopted. Parts of a new Official Plan will also be exempt from appeal, including sections relating to vulnerable areas under the Clean Water Act, the Greenbelt Act, the Lake Simcoe watershed, the Oak Ridges Moraine Conservation Plan Area, and appeals of forecasted population and employment growth in certain situations. An appeal of a lower-tier Official Plan may also be prohibited where it does not conform to the upper-tier Official Plan, as determined by the approval authority.
Certain requests for amendments will also be restricted for two years. Amendments to a new Official Plan will face this two-year restriction, beginning the day any part of a new Official Plan comes into effect. If a municipal council amends a zoning by-law by simultaneously repealing and replacing all of its zoning by-laws, then no application for an amendment to any of the by-laws can be submitted for two years. Lastly, minor variances for properties made subject to a site specific rezoning will face a two-year prohibition, but only for properties whose rezoning is approved after July 1, 2016.
Municipal council ultimately retains the ability to provide relief from the prohibition by making a declaration by resolution which authorizes the application to proceed. While resolutions can be made for a specific application, municipalities may desire a resolution exempting certain classes of requests or all such applications from the two-year restriction. If a municipality is looking for ways to avoid possible delays, for instance by creating reasonable classes of requests to be exempt from the two-year moratorium, or delegating authority over requests to an appropriate municipal officer, Daniel & Partners LLP can help.
Increased Obligations on the Ontario Municipal Board
Under section 2.1 of the current Planning Act, the OMB is required to “have regard” to the decisions of municipal Councils and approval authorities on a planning matter when they make decisions relating to the same, and to consider the information and material relied upon when such decisions were made. This typically includes Council resolutions, staff reports, and other documents generally recorded by the municipality. The amendments coming into force require the OMB to specifically consider “written and oral submissions from the public” as part of the information and material relied upon. The changes also impose similar requirements on the OMB when dealing with appeals arising from the non-decision of a municipal Council or approval authority.
New and revised regulations to the Planning Act are also coming into force on July 1. Apart from updating and simplifying the existing regulations, these revisions are necessary to implement the changes brought about by the Act. The regulations provide direction on various matters under the Planning Act, such as notice requirements for planning applications; revisions to terminology and usage; application requirements for Official Plan and zoning by-law amendments and minister’s zoning order amendments, and; new requirements for the minutes of a public hearing to be included in the record sent to the OMB following an appeal of a minor variance.
Specific rules will apply to planning matters already in process on July 1, 2016. These transitional regulations are particularly important. If a new Official Plan is passed prior to July 1, 2016, then the two-year prohibition period described above will not apply to subsequent Official Plan amendment applications received by the municipality before July 1, 2018. Similarly, if a new zoning by-law is passed by simultaneously repealing and replacing all zoning by-laws before July 1, 2016, then the two-year prohibition period does not apply to subsequent zoning by-law amendment applications received by the municipality before July 1, 2018. Lastly, the two-year prohibition does not apply to minor variance applications received by the municipality before July 1, 2018 if a by-law amendment for site specific rezoning is passed before July 1, 2016. If you have any questions relating to such transitional matters please contact the Planning, Development and Land-Use Lawyers at Daniel & Partners LLP.
Good planning is invariably complex. At Daniel and Partners LLP, we recognize the time and resources required. We have extensive experience in planning, development and land use matters. The significant reforms to Ontario’s planning regime caused by the Act will affect developers, municipalities, and concerned residents alike. You can rely on the St. Catharines based Planning, Development and Land-Use Lawyers at Daniel & Partners LLP for advice and advocacy with respect to planning issues in the Niagara Region.
Blog post written by Michael Liddiard, Summer Law Student.