Planning Law Update
The South East Ontario Municipal Law
Seminar
October 21 and 22, 2015
OUTLINE
• Bill 73 Highlights
• Regulating Docks and Hunting Camps
Located on Crown Land
Bill 73: The Smart Growth for
Our Communities Act
• Introduced on March 5, 2015 by the Ministry of
Municipal Affairs and Housing to reform the
Planning Act and the Development Charges Act
• Goals and purposes of the Act include:
– Giving residents more say in how their communities grow
– Setting out clear rules for land use planning
– Giving municipalities more independence to make local
decisions, and
– Making it easier to resolve disputes
Proposed Amendments to the
Planning Act
1. Two Year Moratoriums on Development
Applications
a)
b)
Official Plan Amendments: During the two year period
following the day any part of the new official plan comes
into effect, no applications to amend the new official plan
would be permitted.
Zoning By-Law Amendments: During the two year period
following the day that council adopts a new comprehensive
zoning by-law and repeals all other zoning by-laws in
effect in a municipality, no applications to amend the
zoning by-law will be permitted.
Proposed Amendments to the
Planning Act
• Intent of the previous proposed amendments is
likely to provide stability and certainty
• However, effect is to tie the hands of a
municipality for a two year period.
• Municipality would be unable to even make
administrative amendments (to correct errors)
or to approve a development that had not been
considered as part of the creation of the new
documents
Proposed Amendments to the
Planning Act
c) Minor Variances: During the two year period
following an owner initiated site specific
zoning by-law amendment, a minor variance
application for the same property would only
be permitted with Council approval.
Proposed Amendments to the
Planning Act
• Again, intent of the previous proposed amendment is likely
to provide stability and certainty
• However, changes will make the process for the applicant
more onerous if a minor change in development plans is
needed
– The applicant will require the permission of Council
rather that the Committee of Adjustments for a minor
variance
• RESULT: Longer approval times and more items of a
minor nature being brought before council
Proposed Amendments to the
Planning Act
3. Council May Refer Appeals to Alternative
Dispute Resolution Before Submitting them to
the Ontario Municipal Board
–
–
On receipt of certain appeals, including appeals
relating to official plan or zoning by-law amendments,
consents or subdivision approvals
In such cases, time for submitting record to OMB
would be extended from 15 days to 75 days
Proposed Amendments to the
Planning Act
• This change has been supported by
municipalities.
• Opportunities to resolve issues through
mediation may result in cost savings for
municipalities in terms of fees and staff
time and resources.
Proposed Amendments to the
Planning Act
4. Additional Emphasis on Public Consultation and
Requirement for Express Consideration of
Submissions from the Public
a)
b)
c)
Alternative forms of Public Consultation may be Extended
to Plans of Subdivision and Consents
Official Plans to Articulate Procedure for Public
Consultation
Councils and Approval Authorities Must Articulate the
Effect of Oral and Written Submissions on Development
Approval Decisions
Proposed Amendments to the
Planning Act
• Serious concerns have been expressed with regards to c)
• Level of detail already covered in reports prior to making a
recommendation for a development application
• Notices of decision are already very lengthy and technical
in nature. Addressing individual submissions would add
considerably to the length, especially in complex
applications with significant public input
• Even more problematic in instances where the notice of
decision must be included in the local newspaper, adding
considerably to the cost
Proposed Amendments to the
Planning Act
5. Ontario Municipal Board to have Regard
to Information and Material Received by
Council or an Approval Authority where
Council or the Approval Authority has
Failed to Make a Decision
Proposed Amendments to the
Planning Act
6. Extension of the 180 Day Period for
Decisions on Official Plans and Official Plan
Amendments
–
–
Currently, any person may appeal an approval
authority’s failure to decide in respect to an official
plan or official plan amendment if a notice of decision
is not delivered within 180 days
Bill 73 contemplates an extension of this period for an
additional 90 days
Proposed Amendments to the
Planning Act
7. Potential for New Prescribed Criteria for
Minor Variances
– New provision proposed that would allow the
Minister to prescribe additional criteria
governing the approval of minor variances
over and above the four part test currently
contained in subsection 45(1) of the Planning
Act
Proposed Amendments to the
Planning Act
• This provision has the potential to be very
significant depending on what new criteria
are imposed.
Proposed Amendments to the
Planning Act
8. Provincial Policy Statement and Official
Plan Review Cycles Extended
– Provincial Policy Statements would be
Reviewed on a 10 year cycle
– New Official Plan would require revision 10
years after coming into effect and every 5 years
afterwards
Proposed Amendments to the
Planning Act
• This change may be beneficial, subject to
there being no moratoriums on amendments
following the approval of the official plans.
• Question whether updates still need to be
done on a 5 year cycle.
Proposed Amendments to the
Planning Act
9. Mandatory Planning and Advisory
Committees
– Planning and Advisory Committees, which
have so far been optional for municipalities,
would become mandatory for upper-tier and
single-tier municipalities
– Must include 1 member of the public
Proposed Amendments to the
Planning Act
10. Minister and Upper-Tier Municipalities
May Impose a Development Permit
System for Prescribed Purposes
Proposed Amendments to the
Planning Act
• While there are benefits to the DPS, it is a
tool that requires all of the background and
work to be done up front and takes a great
deal of time and resources to initially put in
place.
• the decision to adopt a DPS for a
community should remain with the
municipality.
Regulating Docks, Hunting Camps, and
Other Structures on Provincial Crown
Lands
• Discussed in the recent case of Glaspell v
Ontario, 2015 ONSC 3965
Glaspell v Ontario
• Township concluded that it did not have jurisdiction
to enforce the Building Code Act, 1992 or its zoning
by-law on provincial Crown land
• This frustrated a local cottager, Glaspell, whose
neighbours had constructed a two storey boathouse
on a floating dock. This floating boathouse was
tethered to the shore beyond the high water mark,
but there was no structure attached to the bed of the
lake.
Glaspell v Ontario
• As part of the application to the court to have the boat
house removed, Glaspell brought a motion asking the court
to answer five preliminary questions:
– 1) Does a municipality have jurisdiction under the Planning Act
and the Municipal Act to enact and apply zoning by-laws to
structures (e.g. docks, marine facilities, houses) built on, over, in,
or under Ontario Lakes (i.e. on provincial Crown Land)?
– 2) Does the Ontario Building Code apply to the construction of
such structures?
– 3) Do each of the dock and boat house require building permits?
Glaspell v Ontario
– 4) Does the boathouse require an occupancy permit
under the Public Lands Act to occupy public lands?
– 5) Does the boathouse require a work permit under the
Public Lands Act regarding construction of a structure
on shore lands?
• The court answered all questions in the
affirmative.
Glaspell v Ontario-Zoning ByLaws
• although the subject of zoning by-laws is land and zones are
defined on the ground, zoning by-laws operate on the person
using the land and not the land itself (Re Gay)
• Provincial Crown Land (including an Ontario Lake) can be
located on the land within a municipality. Thus, a municipality
is empowered to enact by-laws that regulate the use of such land
by individuals.
• Qualification: The Provincial Crown and Crown Agents are
immune from a municipality’s zoning authority by virtue of
section 11 of the Interpretation Act.
Glaspell v Ontario – Zoning ByLaws
• Township Counterargument:
– Council never intended to have its by-law apply to structures
built entirely beyond the high water mark
– HELD: The effect of this interpretation would be absurd
• The result of such interpretation is that had the anchor
cable for the neighbours’ boathouse been moved past the
high water mark onto their property by even an inch,
then the boathouse would have had to comply with the
zoning by-law.
• Such an interpretation would allow the municipality to
abdicate its responsibilities over zoning
Glaspell v Ontario – Zoning ByLaws
• The Township could lawfully zone the
lands under the lake and regulate the type of
construction and the height, bulk, location,
size, floor area, spacing, character and use
of buildings or structures to be erected or
located within the Township.
Glaspell v Ontario – Building
Code
• Individuals (except for the Provincial Crown/ Crown
Agents) using provincial Crown land located within a
municipality must apply for and obtain a building permit
before constructing on such lands. A municipality must
enforce the Act on such lands as against individuals
other than the Provincial Crown/ Crown Agents.
Glaspell v Ontario – Building
Code
• TOWNSHIP COUNTERARGUMENTS REJECTED
– 1.3.1.2 of the Building Code requires that an
application made under section 8 of the Act be made by
the owner of the property
– Rejected because this led to an absurd result.
– Instead, section 1.3.1.2 of the Building Code should be
interpreted to mean the owner of the property on
which or for which the proposed construction or
demolition is to take place can make an application.