Strong Communities Act
The Strong Communities (Planning Amendment) Act, 2004 (SCA), enacted in November 2004, was the first of a number of land use planning regime changes that have been made or proposed by the current government since it was elected in October 2003. When it was introduced in the legislature in December 2003, the Minister of Municipal Affairs and Housing announced that the SCA would give communities the tools to control their own planning and allow locally elected decision-makers to control urban sprawl.
Contents |
“Shall be consistent with”
One of the most significant changes to the Planning Act made by the SCA is the requirement that decisions by planning approval authorities “shall be consistent with” provincial policy statements. This replaces the former wording in section 3 of the Planning Act that had provided that decision-makers “shall have regard to” provincial policy statements. The “shall be consistent with” language is more prescriptive than “shall have regard to” in directing decision-makers to apply the 2005 Provincial Policy Statement (PPS) in planning decisions, meaning that provincial policy is likely to be applied more consistently in planning decisions, and provincial interests given priority. However, the significance of the “shall be consistent with” language will depend a great deal on the substance of the policies in the 2005 PPS. As discussed in the ECO’s review of the 2005 PPS, there is some evidence that the policies in the new 2005 PPS may not be strongly worded enough to adequately protect the environment and natural heritage values in the face of pressure from development and other provincial interests.
Provincial interest
The SCA amends the Planning Act to give the Minister of Municipal Affairs and Housing the power to declare a provincial interest in an appeal before the Ontario Municipal Board (OMB) related to an official plan or bylaw if the minister believes it may adversely affect a matter of provincial interest. When the minister has declared a provincial interest, the OMB’s subsequent decision will not be final and binding unless that decision is confirmed by Cabinet. Cabinet may decide to confirm, vary or rescind the OMB’s decision, and in so doing, may direct the minister to modify the provisions of an official plan or amendment that adversely affects a matter of provincial interest, or repeal or amend a zoning bylaw or amendment. Cabinet is under no obligation to adhere to the 2005 PPS when it reviews an OMB decision on the basis of a declared provincial interest.
Areas of settlement
In another important change, the SCA adds new provisions to the Planning Act concerning appeals of area of settlement boundaries. By removing the right of appeal in such cases, municipalities are now in a stronger position to prevent developers and other private parties from altering settlement area boundaries or creating new ones that the municipalities do not support. This amendment was a response to frustration on the part of municipalities which had to deal with these appeals even after their approved official plans had been developed with a great deal of public consultation.
Such appeals have required municipalities to spend a great deal of money and resources in order to defend their official plans before the OMB. This amendment also is directly related to other provincial land use planning initiatives that seek to direct urban growth to the most appropriate areas and curb urban sprawl, such as the Greenbelt Act and the Places to Grow Act.
The Planning Act: Changes in Wording
|
Extended time periods
The SCA extends the time periods approval authorities have to make decisions on various types of planning applications before an appeal may be made to the OMB. Prior to these amendments, a person or public body could initiate an appeal of many types of pending decisions under the Planning Act if no decision on the planning approval had been made after 90 days. The SCA increases the period of time allowed to make these decisions, from either 60 or 90 days to 90, 120 or 180 days, depending on the type of planning application.
ECO Comment
The ECO commends MAH for bringing forward these much-needed amendments to the Planning Act. The SCA has the potential to strengthen the roles of both the provincial government and municipal governments in different aspects of Ontario’s land use planning process.
The change in language from “shall have regard to” to “shall be consistent with” should ensure greater consistency with provincial policy. However, there may still be some uncertainty about its application. Decision-makers will inevitably face situations that require them to resolve conflicts between different policies in the 2005 PPS, or between provincial policy and other factors that must be considered. MAH should consider issuing additional guidance as to how these competing interests should be balanced and prioritized by decision-makers.
The amendments allowing the government to declare a provincial interest in an appeal before the OMB and to review the OMB’s decision on that appeal should assist the government in circumstances where it believes it must act to protect the public interest from being adversely affected. In making these determinations, it is essential that the government ensure that environmental protection is an important public interest. This reinstatement of a provincial Cabinet’s power to overturn decisions of the OMB may also bring increased lobbying pressure on the provincial government from parties who are not successful before the local decision-making body.
Limiting appeals on settlement area boundaries is a reasonable measure to prevent developers and the OMB from successfully changing the settlement area boundaries over the objections of municipalities.
The extension and removal of time periods allowed before appeals to the OMB should give municipalities greater opportunity to ensure that the best decisions are reached in planning applications. These amendments also address concerns that the public has not been given the opportunity to participate fully in the planning process due to the limited time periods for review. The ECO also urges MAH to consider amending the definition of a “complete application” to require that detailed information be provided to municipalities, including supporting documents and technical studies, before municipalities must begin processing an application.
As noted above, almost all of the amendments in the SCA have implications for the OMB. Many of the changes made by the SCA are intended to address criticisms that have been levelled against the OMB in recent years. Among these criticisms are allegations that the Board has been too favourable to developers in its decisions, that it has not always adequately considered provincial policy, and that its often long, costly hearings have been inaccessible to members of the public unless they can hire lawyers and other experts, which is usually financially prohibitive. Whether or not these criticisms are valid, they have shaped public perception of the OMB. The provincial government has suggested that it plans additional reform to the Board.
In the SCA, the legislature appears to be attempting to strike a balance between local autonomy and strong provincial oversight in land use planning. However, the transfer of final decision-making powers from the OMB to municipal councils may be positive when municipalities are progressive in their approaches to land use planning – but potentially problematic when they are not. Similarly, a stronger provincial role in planning raises concerns if the Cabinet is not required to adhere to its own 2005 PPS in making final determinations. In time, as the SCA amendments are implemented and applied, it should become clear whether the balance of municipal and provincial land use planning powers is appropriate.
(For a detailed discussion of the Strong Communities Act, see the Supplement to this report, pages 152-160.)
| This is an article from the 2004/05 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2005. "Strong Communities Act." Planning our Landscape, ECO Annual Report, 2004-05. Toronto, ON : Environmental Commissioner of Ontario. 36-39.
