Planning and Conservation Land Statute Law Amendment Act, 2006 (PCLSLAA)
In December 2005, the Minister of Municipal Affairs and Housing (MMAH) tabled Bill 51, the Planning and Conservation Land Statute Law Amendment Act, 2006 (PCLSLAA). The substantive parts of the Bill, which received its Third Reading on October 12, 2006, and Royal Assent on October 19, 2006, came into force on January 1, 2007.
The legislative amendments in the PCLSLAA represent one element in the Ontario government’s broad package of land use planning reforms launched following the election of the new government in October 2003 (as noted in the ECO’s 2004/2005 Annual Report).
The purposes of the amendments in the PCLSLAA were outlined in an MMAH backgrounder that accompanied the introduction of Bill 51 in the Ontario legislature. The PCLSLAA is intended to:
- provide municipalities with the tools and flexibility to address their needs, including protection of employment lands, sustainable development (e.g., environmentally-friendly design), intensification and brownfields revitalization;
- allow for greater information, participation, consultation and decision-making to take place early on in the process, giving local residents and community leaders more opportunity to play their crucial part in planning their communities; and
- create a more transparent and accessible land use planning process; and
- make the Ontario Municipal Board (OMB) more effective, transparent and user-friendly.
A number of the amendments are intended to address specific concerns about the OMB, including the following:
- the OMB had the power to substitute its opinions for the decisions of elected municipal councils;
- appeals before the OMB forced municipalities to spend limited resources to defend decisions that had been subject to the land use planning process;
- the OMB process was inaccessible to members of the public, and the interests of ordinary residents were not given equal weight to those of developers; and
- municipalities were not able to respond within tight deadlines of development applications, leading to a greater number of appeals before the OMB.
Bill 51 attempts to address some of these issues, but appears to have created other problems in the process. Some of these are summarized later in this section.
Other amendments clarify the degree of discretion and independence that decision-makers under the Planning Act have in relation to municipal decisions and provincial policies. When making a planning decision under the Act, the decision-maker, whether an approval authority or the OMB, must have regard to any decision that is made by a municipal council or another approval authority relating to the same matter, as well as to any supporting information and material that the municipal council or approval authority considered in making the decision. This provision is somewhat unusual given that administrative tribunals typically are not bound by precedent.
In addition, decision-makers on planning matters must be consistent with provincial policy statements in effect at the time of the decision, and must conform with, or not conflict with, the provincial plans in effect on that date, such as the Niagara Escarpment Plan, the Oak Ridges Moraine Conservation Plan and the Greenbelt Plan.
Furthermore, there is now a requirement that the OMB have regard to recommendations and decisions of municipalities. At first reading of Bill 51, the Minister of Municipal Affairs and Housing stated that the reforms would “make municipalities and local councils more accountable for planning matters and help reduce the number of appeals to the Ontario Municipal Board as well as the duration of hearings.”
These are major changes in Ontario, and should promote more consistent decision-making in the years ahead.
Contents |
Local Appeal Bodies and Limits on OMB Appeals
The PCLSLAA provides that municipal councils which meet prescribed conditions may establish and appoint a local appeal body (LAB) to hear appeals of certain local land use planning matters. The LAB may hear appeals of decisions of the Committee of Adjustment and decisions on consents, and will have all of the powers of the OMB on these appeals. An appeal on a question of law from a LAB decision may be made to the Divisional Court, if leave is granted.
Prior to the PCLSLAA, any person or public body had a right of appeal to the OMB regarding all or part of an official plan. The PCLSLAA limits this right of appeal to: a person or public body that made oral submissions at a public meeting or written submissions to the council before the plan was adopted; the Minister; the appropriate approval authority; and, where a request has been made to amend the plan, the person or public body that made the request. Similar limitations on this broad right of appeal also apply to changes to zoning by-laws.
The PCLSLAA adds a new matter of provincial interest to the Planning Act. In addition to the other matters of provincial interest listed, decision-makers under the Planning Act must now have regard to “the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians.” As noted in section 2.1, this should have important implications for promoting positive alternatives for transportation in southern Ontario communities.
Municipal Tools for Sustainable Communities
The PCLSLAA expands the scope of community improvement plans to include improvement of energy efficiency. Municipal grants and loans to support implementation of a community improvement plan may be made to pay for costs related to environmental site assessment, environmental remediation and provision of energy efficient uses.
The PCLSLAA clarifies that the municipal authority to pass zoning by-laws regulating the construction of buildings or structures includes (and, despite the decision of any court, is deemed always to have included) the authority to regulate the minimum area of a parcel of land, the minimum and maximum density, and limits on the height of development in the municipality or areas defined in the by-law.
The PCLSLAA should also give municipalities a number of tools to help promote environmentally-sustainable development and design. When the minister introduced the bill, he noted that, “municipalities would have new authority to set conditions for how new subdivisions are designed in ways that maximize energy efficiency and include transit- and pedestrian-friendly design elements along streets and highways….” The minister also stated that the Act gives “municipalities more powers to shape the look and feel of their communities through new authority to consider external design details when they approve site plans.” In practical terms, municipalities may be able to:
- expand the scope of community improvement plans to include improvement of energy efficiency;
- use municipal grants and loans to pay for costs of private and public sector developers related to environmental site assessment and remediation;
- require developers to address the sustainable design of buildings and other sustainable design elements; and
- consider the extent to which designs promote conservation of energy.
Complete Application
A council or a planning board may require that an applicant requesting an official plan amendment (OPA), zoning by-law amendment or subdivision approval provide any information considered necessary, if the official plan provides for this. Once an applicant requests an OPA, zoning by-law amendment or subdivision approval, the council, planning board, or approval authority is required to notify the applicant as to whether or not the application is complete. An applicant who is advised that their application is not complete has 30 days by which to make a motion to have the OMB determine whether the information and material have in fact been provided or whether a requirement for additional information is reasonable. The OMB’s determination on this matter is not subject to appeal or review.
Several amendments provide the public greater access to the land use planning process, including information related to that process. A new provision in the Act requires that any information that is required to be provided to a municipality or approval authority under the Planning Act be made available to the public. In the course of preparing an official plan, the municipal council must meet additional consultation requirements. In addition to consulting the approval authority on the preparation of the plan, the council must now provide the approval authority with an opportunity to review supporting information and material, even if the plan is exempt from approval.
The PCLSLAA will have a major impact on some future energy projects, because it allows the Ontario government to make regulations exempting new energy projects from the Planning Act if they are approved or exempted under the Environmental Assessment Act (EAA). The EA process will not address site-specific zoning issues, such as setback requirements, construction, traffic and overall official plan requirements. Municipalities won’t have an opportunity to identify appropriate locations for energy undertakings from a land use planning perspective.
In addition, if it is determined that an official plan needs to be revised, or if a zoning by-law is being amended in relation to a development permit system or a three-year zoning by-law update is undertaken, the municipal council must ensure that at least one open house is held to give the public an opportunity to ask questions about the information and material available.
Public Participation & EBR Process
Bill 51 was introduced in the Ontario Legislature on December 12, 2005, and a proposal for the draft Act was placed on the Registry the next day, providing the public with a comment period of 75 days. Since MMAH had not posted a Registry decision notice by the time this review was completed in late May 2007, the ECO is uncertain as to exactly how many comments were submitted, what issues, concerns and recommendations those comments contained, or how they were considered by the ministry. However, a good indication of the perspectives of various stakeholders is available in the submissions presented to the Standing Committee on General Government during hearings on Bill 51.
Overall, there was strong support for the proposed amendments from municipalities, along with recommendations to further strengthen municipal powers. There was also a fair degree of support from ENGOs and other citizens’ groups, although specific issues were raised. In contrast, developers and homebuilders’ associations generally expressed concerns that the legislative changes would result in added costs, delays and uncertainty in the planning process.
Stakeholders involved in development opposed the amendment requiring that planning decisions be consistent with the Provincial Policy Statement (PPS) and conform with provincial plans in effect at the time of the decision. They recommended that the province ensure that applications be assessed against the plans and policies in force on the date of the application, rather than the date of decision.
A number of stakeholders expressed concerns about amendments which limit the right of appeal to the OMB and the adding of parties to a hearing. One environmental group noted that these provisions could be unnecessarily restrictive for community-based and public interest interveners since they usually have limited resources. Another stakeholder suggested that by excluding local residents who did not make an oral or written submission before the council made its decision, the proposed amendments would limit public participation and favour participation by developers and public bodies. A number of ENGO stakeholders also encouraged the Ontario government to develop a framework to provide intervener funding to support community participation in the planning process.
Many commenters addressed a proposed exemption from the Planning Act for energy projects approved or exempted under the EAA. A number of stakeholders, including the Canadian Wind Energy Association and the Ontario Waterpower Association, supported this amendment out of a desire to eliminate duplication and overlap currently existing between the EA and planning processes. In contrast, many municipal and ENGO stakeholders strongly opposed this exemption on the grounds that energy undertakings should not be exempted from the land use planning process, even if they have been through an EA.
A number of concerns were also raised regarding proposed amendments to the Conservation Land Act (CLA). Stakeholders supported establishing a registry under the CLA, but suggested there was a need for a consolidated registry that would capture conservation easements under other laws, such as the Ontario Heritage Act. The Ontario Land Trust Association urged amendments to the Assessment Act requiring property assessors to evaluate the impact of a conservation easement on a property’s value for assessment purposes, and another conservation stakeholder group recommended that the list of purposes for which conservation easements and covenants are appropriate should include walking trails, recreation, and areas of aesthetic or scenic interest.
ECO Comment
Overall, the ECO commends the Ministry of Municipal Affairs and Housing for implementing the reforms contained in the PCLSLAA. In the ECO’s 2005/2006 Annual Report, the Commissioner reviewed the state of provincial planning in relation to adaptation to a changing climate. Municipalities may be able to use some of the new provisions put in place by the PCLSLAA to adopt strategies for adapting to the effects of climate change. The Planning Act now requires municipalities to have regard to the promotion of development that is designed to be sustainable, to support public transit and to be oriented to pedestrians. This is important if Ontario communities are to move toward sustainability.
The ECO agrees with those who argued that the loss of broad appeal rights for local residents under the PCLSLAA is significant and unfortunate. In the past, public interest group appeals in relation to natural heritage and development issues have resulted in many important OMB decisions that have protected natural heritage and limited development on agricultural land. Although in some cases, leave to appeal rights under the EBR may be available to interested individuals and groups, these will apply in a very narrow range of cases and, overall, there will be a reduction in appeal rights. The ECO intends to monitor implementation of these new provisions.
The ECO also has concerns about the regulation-making provision that could exempt some energy projects from the Planning Act if they have been approved or exempted under the EAA. The ECO echoes concerns expressed by municipalities and ENGOs relating to the need for energy undertakings to be evaluated according to land use planning principles. Some public concerns and conflicts related to the siting of wind turbine sites could be addressed if MMAH and the Ministry of Natural Resources were to plan appropriate exclusion zones for wind power development.
While the OMB will continue to have a vital role in land use planning decisions, a number of its powers are curtailed and returned to the municipalities. The ECO applauds these changes because they should increase accountability and transparency in municipal decision-making and promote sustainability. The ECO intends to monitor how these and other amendments contained in Bill 51, are implemented and report on this in future annual reports.
| This is an article from the 2006/07 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2007. "Planning Act Reforms: Providing Municipalities with New Tools for Sustainability." Reconciling our Priorities, ECO Annual Report, 2006-07. Toronto, ON : Environmental Commissioner of Ontario. 107-112.
