Emerging Provincial Planning Initiatives and Law

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Many planners and related industry professionals may be familiar with the Province of Ontario’s recently initiated Coordinated Provincial Plans Review, or Bill 73, which proposes significant changes to Ontario’s Planning Act and Development Charges Act. However, there is a myriad of proposed land use planning-related legislation and policy planning initiatives currently underway and under consideration by provincial Parliament. If passed, or once completed, these initiatives will have big impacts on municipalities, developers, and landowners across Ontario.

These changes follow some recent major provincial planning initiatives. In February 2014, the Province completed the 2014 Provincial Policy Statement, which came into effect in April 2014. (Click here to view our article on the 2014 PPS). The Province also undertook consultation on the land use planning, appeals, and development charge systems beginning in November 2013. Bill 73, which proposes amendments to the Planning Act and Development Charges Act, is the key outcome of that consultation process.

As a consulting team specializing in providing community planning and related services for municipalities, provincial governments, private land owners, developers, government agencies, and other organizations, we are keeping a close eye on the evolution of these initiatives. Some of the laws are not likely to proceed to Royal Assent; however, it is important for planning professionals to be prepared for any potential changes to the Planning Act, as they may have significant impacts on our jobs or professional responsibilities.

 

Provincial Planning Initiative or Proposed Planning-Related Legislation Overview
Coordinated Provincial Plans Review The Province’s coordinated review of the Greenbelt Plan, Growth Plan for the Greater Golden Horseshoe, the Niagara Escarpment Plan, and the Oak Ridges Moraine Conservation Plan
Smart Growth for Communities Act (Bill 73, 2015) A series of changes to the Development Charges Act and the Planning Act, based on consultation undertaken through the Province’s 2013/2014 Land Use Planning System and Appeals Process Review
Preserving Existing Communities Act (Bill 41, 2013) A previous Private Member’s Bill proposed to restrict OMB appeals in stable areas and in Parks and Open Space designations
Infrastructure for Jobs and Prosperity Act (Bill 6, 2015) Legislation to require 10-year infrastructure plans
Planning Amendment Act – Enabling Municipalities to Require Inclusionary Housing (Bill 3, 2014) Proposed legislation to enable municipalities to require that a certain number of housing units be made affordable
Restoring Planning Powers to Municipalities Act (Bill 48, 2014) A bill that would enable the City of Toronto to establish local appeal bodies for all manner of planning applications
Planning Statute Law Amendment Act (Bill 39, 2014) A Private Member’s Bill that would grant municipalities greater authority over planning decisions, and would impose some limitations on OMB appeals through a variety of changes to the Planning Act.

 


 

Click below to learn more about current and recent Provincial Planning initiatives, as well as proposed legislation.

 

  • In early 2015, the Province of Ontario initiated a coordinated review of four provincial plans:

    • The Growth Plan for the Greater Golden Horseshoe
    • The Greenbelt Plan
    • The Niagara Escarpment Plan
    • The Oak Ridges Moraine Conservation Plan

    These plans complement each other to collectively manage growth, and to help to conserve natural heritage and agricultural lands across much of southern and central Ontario. Municipal Official Plans and land use planning decisions are to be in conformity with the policies of each Plan. Collectively, the Plans impact a forecasted population of nearly 14.5 million people by 2041; and the conservation of 1.8 million hectares of land, stretching from Niagara Region, north to Grey County, east to Northumberland County, and wrapping around the Greater Toronto Area.

    Each Plan is associated with a statutory review requirement. The Growth Plan and Greenbelt Plan are slated for five-year reviews, while the Niagara Escarpment Plan and Oak Ridges Moraine Conservation Plan are to be reviewed every 10 years. These reviews coincide in 2015, and the Province has elected to review the Plans in a coordinated manner.

    The review process is in its first stage. The Province sought input on the Plans, including input on how to strengthen them and how to improve their coordination, in order to gain an understanding of what is working well. The intent is for two stages of public consultation to be conducted. The first stage of public consultation ended on May 28, 2015. After the release of potential amendments to the Plans, the second stage will focus on obtaining input on the proposed amendments.

    To kick off the first stage of consultation, the Province produced a discussion document entitled “Our Region, Our Community, Our Home.” The document outlined background information and goals for the review, and posed some discussion questions under a variety of topic areas. The six goals for the review included:

    • Protecting agricultural land, water, and natural areas
    • Keeping people and goods moving, and building cost-effective infrastructure
    • Fostering healthy, livable, and inclusive communities
    • Building communities that attract workers and create jobs
    • Addressing climate change and building resilient communities
    • Improving implementation and better alignment of the Plans.

    Refer to the Province of Ontario’s website for more information.

  • The Smart Growth for Our Communities Act, 2015, also known as Bill 73, proposes to amend the Ontario planning system under the Planning Act and the manner in which municipalities can impose development charges under the Development Charges Act, 1997. Bill 73 received its first reading in the Legislature in March, 2015, and its second reading and debate in April and June 2015.

    Bill 73 was developed in response to public consultations undertaken by the Province of Ontario from October 2013 to January 2014. The purpose of this endeavour was to ensure these systems are “predictable, transparent, cost effective and responsive” to the needs of the dynamic communities and stakeholders within Ontario.


    Overview

    MMM Group’s planning and environmental design team has reviewed Bill 73 in detail to determine the magnitude of the proposed changes to the planning and development charges systems in Ontario. The following is a summary of the key changes proposed.

    Development Charges Act, 1997, Key Changes Proposed:

    • Accountability – Municipalities will be accountable for the distribution of levies to capital projects that are sustainable over their lifecycle.
    • Transparency – Municipalities will prepare an asset management plan, and will make financial statements available for public review.
    • Flexibility – Municipalities will have the ability to develop several area-specific DC By-laws to address the infrastructure and servicing needs of local communities.

    Planning Act, Key Changes Proposed:

    • Extension of review requirements – The review requirement of the PPS and municipal official plans are extended to every 10 years.
    • Restriction on certain OP appeals – Global appeals on new official plans are restricted, as are appeals of policies or projections that conform to provincial policy.
    • Use of alternative dispute resolution techniques – provides a mechanism for extending an OMB appeal period to allow for alternative dispute resolution, such as mediation and negotiation, in an effort to avoid a hearing.
    • Two-year Restriction on Amendments – imposes a two-year restriction on applications for amendment to a new official plan and a new municipal zoning by-law where the previous by-law(s) was repealed. The two-year restriction also applies to applications for minor variance subsequent to the approval of site-specific zoning initiated by the property owner.
    • Alternate residential parkland dedication rate – proposes to change the alternate residential parkland dedication rate from 1 ha for every 300 dwelling units to 1 ha for every 500 dwelling units.

    The following is a detailed overview of the noteworthy changes that have been proposed:

    Development Charges Act, 1997

    Development Charges to Become Area-Specific

    Bill 73 would require municipalities to pass different, area-specific development charge by-laws that would apply to land within certain parts of a municipality. This would allow specific services to be identified and funded directly on a more local basis.

    Asset Management Plan

    The Bill would require municipalities to prepare an asset management plan in an effort to provide transparency with respect to the allocation and use of funds. This plan would identify the capital costs of services to be provided, and would demonstrate that these capital purchases are financially sustainable over their life cycle. Statements identifying the opening and closing balances of the funds and their capital allocation must be made available to the public.

    No Additional Levies

    Bill 73 would prevent municipalities from either directly or indirectly imposing development charges that are not prescribed by the Act. The Bill also gives authority to the Minister to undertake an investigation into the manner in which a municipality has charged levies.


    Planning Act

    Timing of Update to Provincial Policy Statement

    The Provincial Policy Statement (PPS) provides policy direction on matters of provincial interest related to land use planning and development, and it is prepared under the authority of Section 3 of the Planning Act. Currently, the PPS must be reviewed and updated every five years. Bill 73 proposes to amend this review and update requirement to every ten years.

    Planning Advisory Committee

    The councils of upper-tier and single-tier municipalities would now be required to appoint a planning advisory committee. The appointment of such a committee is optional for lower-tier municipalities.

    No Global Appeal

    In the case of a municipality that has adopted, or its approval authority has approved, a new Official Plan (OP), Bill 73 proposes to prevent the global appeal of the OP to the Ontario Municipal Board (OMB). That is, a person or public body that has participated in the OP planning process cannot appeal the whole of the OP, but is free to appeal a part of it.

    The restriction on global appeals only applies, however, to newly adopted or approved OPs. If a council fails to make a decision on an OP amendment, then a person or public body is free to appeal it in its entirety.

    No Appeal on Certain Matters

    Bill 73 proposes to restrict appeals on certain matters, including a part of an OP that:

    1. is within the boundary of:
      • a vulnerable area of the Clean Water Act, 2006
      • the Lake Simcoe watershed of the Lake Simcoe Protection Act, 2008
      • the Greenbelt Area, Protected Countryside of the Greenbelt Act, 2005, or within the boundary of a specialty crop area designated by the Greenbelt Plan
      • the Oak Ridges Moraine Conservation Plan Area established under the Oak Ridges Moraine Conservation Act, 2001
    2. conforms to forecasted population and employment growth as set out in the Places to Grow Act, 2005
    3. in the case of a lower-tier municipality, conforms to forecasted population and employment growth in the upper-tier municipality’s OP if the latter conforms to the projections of the Places to Grow Act, 2005
    4. in the case of a lower-tier municipality, the boundary of an area of settlement that reflects that set out in the upper-tier municipality’s OP and the latter is approved by the Minister

    Alternative Dispute Resolution and Appeal Period Extension

    Bill 73 proposes to amend the OMB appeal process to give councils the power to undertake alternative dispute resolution techniques, such as mediation and negotiation. If a council gives notice that it is undertaking alternative dispute resolution techniques, then the appeal period is extended from 15 to 75 days. Participation in alternative dispute resolution is voluntary.

    Extension of Time Where No Decision Was Made

    When an application for OP amendment is submitted to a municipality and no decision is made within 180 days, the applicant has the right to appeal for non-decision to the OMB. However, Bill 73 would only allow a one-time extension of 90 days to this appeal period. The extension can be requested by the applicant, the municipality, or the approval authority.

    No Request for Amendment to OP for Two-Year Period

    In the case where a municipality prepares a new OP, Bill 73 proposes to restrict any and all requests for an amendment to that new OP for a two-year period after any part of the plan comes into effect.

    Extension to Comprehensive Review OP

    Bill 73 proposes to extend the period within which municipalities must undertake a comprehensive review of an OP from every five years to every ten years.

    No Request for Amendment of Zoning By-law for Two-Year Period

    Similarly to the OP process, where a municipality repeals all of its Zoning By-laws (ZBL) and replaces them with a new ZBL, Bill 73 proposes to restrict any application to amend the ZBL for two years from the date upon which council repealed and replaced.

    Greater Transparency with Density Bonusing

    Bill 73 proposes that funds received through density bonusing agreements now be placed into a special account. Furthermore, the treasurer of the municipality would now be required to prepare, and submit, an annual financial statement containing such information as opening and closing balances as well as statements identifying the facilities and services funded by the account. These financial statements will be made available to the public.

    Parks Plan

    Bill 73 would require municipalities to prepare a parks plan that “examines the need for parkland in the municipality”. The parkland needs are to become integrated within a municipality’s OP.

    Parkland Dedication Rate

    Bill 73 proposes to define “payment in lieu” to mean, “a payment of money in lieu of a conveyance otherwise required under section 42, 51.1 or 53”. The Bill also redefines the alternate rate that municipalities may adopt for residential parkland dedication purposes in their OP from 1 hectare for every 300 dwelling units to 1 hectare for every 500 dwelling units.

    No Request for Minor Variance to a Site Specific ZBL for Two-Year Period

    Where a ZBL was amended for a property in response to an application for amendment by the owner, Bill 73 proposes to restrict subsequent minor variances to the site-specific ZBL for a period of two years thereafter.

  • In 2013, a Private Members Bill was brought forward to give municipal councils the final say on development applications within “stable residential areas” or areas designated as “parks and open space”. Under the proposed legislation, applications in these contexts could not be appealed to the Ontario Municipal Board. The Bill was, in part, brought about by a controversial infill development application in Newmarket.

    A number of municipal councils in the Greater Toronto Area expressed support for the Bill, in principle, by passing resolutions. The legislation passed its first reading on March 27, 2013, and was brought forward for a second reading on April 18, 2013. The Bill was carried on its second reading, and was ordered to be referred to the standing committee on General Government. Since the provincial election in 2014, however, the Bill has not yet re-emerged in the Legislature for consideration or debate. Click here to view the 2013 Bill.

  • The Infrastructure for Jobs and Prosperity Act received Royal Assent on June 4, 2015.

    The core purpose of the Infrastructure for Jobs and Prosperity Act is to require the provincial government to prepare 10-year infrastructure plans, with regular review periods, to ensure long-term strategic infrastructure planning and capital investments. The process would enable coordinated infrastructure planning to support planning policy objectives and to help ensure sustainable and sound decision making. According to the proposed legislation, 10 broad principles are to be considered when making infrastructure decisions, including the need to take a long-term view and to make evidence-based, transparent decisions.

    While this legislation does not include any amendments to the Planning Act or related planning legislation, it will be of interest to planners and related industry professionals. One of the key principles for making infrastructure planning decisions is the consideration of whether investment decisions support municipal and provincial plans, including the Provincial Policy Statement, Provincial Plans, the Lake Simcoe Protection Plan, municipal water sustainability plans, and transportation plans under the Metrolinx Act. The legislation could represent a shift in the way community plans are implemented and supported by infrastructure investments. This could ultimately give more purpose and weight to municipal and provincial plans.

    The Act can be viewed here.

  • The Planning Amendment Act to Enable Municipalities to Require Inclusionary Housing is legislation that proposes to enable municipalities to require a certain percentage of units to be affordable as part of development proposals. The Bill was introduced for its First Reading in July 2014.

    The legislation proposes to enable municipalities to pass by-laws under Section 34 of the Planning Act (i.e., Zoning By-laws) to require that a specified percentage of housing units in all new housing developments be affordable. This would only apply to housing developments containing 20 or more housing units. The municipality would have the discretion to determine the percentage of units that must be affordable. In order to require inclusionary housing, Official Plan policies would need to be in place. The Province can implement regulations to help define affordable units, such as the number of bedrooms and size, as well as how the affordable housing units are to be implemented (design/construction standards, timing of construction, location, distribution of units, etc.). The legislation would apply broadly to any type of housing development, including subdivisions or multi-unit buildings.

    As of June 2015, the Bill has not yet been brought forward for a second reading in the current Parliament. The Bill may be viewed here.

  • There has been significant controversy surrounding the Province’s Green Energy Act, which, in part, took away municipal authority to regulate certain types of renewable energy undertakings which are regulated by the Province. The intent of the Green Energy Act was to encourage wide-spread use of renewable sources of energy across Ontario, encourage job creation in the energy sector, and promote energy efficiency. The Green Energy Act amended the Planning Act to exclude “renewable energy undertakings” from official plans, zoning by-laws, site plan control, and other municipal land use planning tools.

    The proposes to repeal changes to the Planning Act, including the definitions of renewable energy facilities. The changes would re-enable municipalities to plan for, and regulate, renewable energy structures using tools under the Planning Act, whether or not the structures are subject to provincial approvals. The Bill has been brought forward twice for a first reading; first in February 2013 as Bill 2, 2013 and again in November 2014 as Bill 48, 2014. As of June 2015, the Bill has not been brought forward for a second reading or debated. The Bill may be viewed here.

  • A Bill has been tabled to limit Ontario Municipal Board appeals in the City of Toronto which enables the City of Toronto to establish its own local appeal body for planning matters. Currently, the City of Toronto Act, and the Planning Act, enable the establishment of local appeal bodies for Minor Variance and Consent applications. Toronto City Council voted in favour of establishing a local appeal body for Minor Variances and Consents in summer 2015 which would begin hearing appeals made starting in September 2015.

    The Respect for Municipalities Act proposes to greatly broaden the City’s ability to establish appeal bodies for the purposes of hearing all applications under the Planning Act, including re-zonings, plans of subdivision, Official Plan, holding by-laws, interim control by-laws, and Community Improvement Plans, as well as applications under the Condominium Act, Ontario Heritage Act and so forth. The impact of the Bill would essentially be to remove the Ontario Municipal Board from the City of Toronto, provided the City established appeal bodies in a manner similar to its recent progress on creating a local appeal body for Minor Variances and Consents.

    The Bill was previously tabled in 2014 as Bill 20. It was brought forward for its first reading on March 4/5, 2013, and its second reading on March 7, 2013, where it was referred to the Standing Committee on Finance and Economic Affairs. The Bill remerged in April through May 2014, when it was debated; ultimately, it was recommended the Bill not be reported by the Committee to the House.

    Since being dropped by the Committee, the Bill re-emerged for a first reading on July 7, 2014, but has not moved forward since then. The Bill may be viewed here.

  • A Private Member’s Bill was introduced in November 2014 to generally give municipalities greater authority and control over planning decisions. The Planning Statute Law Amendment Act, Bill 39, 2014, introduces a number of changes to the Planning Act which would:

    • Allow municipalities to require a certain number of housing units in a development to be affordable (i.e., the intent of the Planning Amendment Act to Requiring Inclusionary Housing, Bill 3, 2015, would be incorporated)
    • Require the Ontario Municipal Board (OMB) to make its decisions in a manner that is consistent with the decisions of municipal councils
    • Extend application processing timeframes for certain types of applications (Official Plan Amendments and Zoning By-law Amendments)
    • Prevent certain types of appeals (municipal Official Plan Amendments, Interim Control By-laws in Toronto)
    • Require more information to support an OMB appeal, including a pre-list of evidence

    The intent of the legislation overlaps with some of the changes proposed under Bill 73, 2015. Since it is a Private Member’s Bill, it will likely be put on the back burner while Bill 73 is being considered and refined. Click here to view the Bill.