Presentation to Association française des municipalités de l'Ontario (AFMO) and Association des juristes d'expression française de l'Ontario (AJEFO) 2007 Annual Conference
- Does Projet de loi 51, Loi modifiant la Loi sur l'aménagement du territoire et la Loi sur les terres protégées et apportant des modifications connexes à d'autres lois, provide municipalities with more or less control over the planning process?
- Will municipalities conclude that the amendments make it easier or more difficult for the developer to "race to the Board" for a decision, simply ignoring as much as possible Councils' decision?
- Are there any losers as a result of these amendments?
Loi de 2006 modifiant des lois en ce qui a trait à l'aménagement du territoire et aux terres protégées (Planning and Conservation Land Statute Law Amendment Act 2006) is an attempt by the province to gently and slowly move the control over planning from the Commision des affaires municipales de l'Ontario (CAMO) to local government.
The amendments to the Planning Act include a new term namely "Complete Applications". This term arises out of the attempt by the province to place the control over planning in the hands of the municipality.
Almost every municipal council in the province has experienced the circumstances wherein "Joseph" the applicant would file his application whether it be for a zoning change, plan of subdivision or consents; pay the required fee to have the application processed; then sit back and wait for the statutory period to run out. More often than not, the municipality would not respond, so "here we go again", off to the CAMO.
Joseph appeals Councils' decision or lack thereof to the CAMO. In most instances, results of studies and various reports undertaken on behalf of Joseph to support his application were provided to the CAMO, the Council never having seen such reports prior to the Board hearing.
I suggest this has been a common practice, but now because of the amendments, such practice will no longer continue.
Under the amendments, municipalities now have the authority to establish what information (checklist) is required in an application. Inclusion of the municipalities' "check list" in the application will result in a complete application.
Are there any repercussions for Joseph the applicant if he fails to follow the checklist?
Yes, the countdown of the period of time allotted to the municipality to make its decision (this period is also known as the appeal period) does not begin to run. In other words, the clock does not begin until the application is "complete".
In my opinion, it was the intention of the province with these new amendments to indicate to the local politicians that it has heard its frustration over planning issues that have been taken away from local Councils and sent to the Ontario Municipal Board (OMB) before Council had a chance to get its teeth into the issue. Councils have been upset because Board hearings cost money to the municipality, both in lost time to its employees as well as costs of outside experts and professionals.
Now, there will be early discussions and even consultation between Joseph the developer and municipal staff members.
More importantly, there is now a process to ensure that all relevant information concerning Joseph's application is seen by Council prior to the beginning of the appeal process.
Listed below are some specific amendments to the Act.
New Section 1.0.1 states:
"Information and material that is required to be provided to a municipality or approval authority under this Act shall be made available to the public".
This means all information and reports filed by Joseph with the municipality are now available upon request to the public.
How are official plans affected by the amendments?
Section 22 of the Planning Act is the section that deals with requests to Council to amend its official plan.
Section 22 (5) has been amended and now reads:
"Other information (5) A Council or a planning board may require that a person or public body that requests an amendment to its official plan provide any other information or material that the Council or planning board considers it may need, but only if the official plan contains provisions relating to requirements under this subsection."
Before this change, the municipality had the discretion to decide what "other information" was required. Now that "other information" can be actual requirements, which may be set out or listed in the official plan. This would also apply to all official plan amendment applications.
Municipalities may also require lists for zoning amendments [Section 34 (10.2)] as well as plans of subdivision applications Section 51 (18) and consents Section 53 (3).
As previously mentioned, amendments to the Planning Act include a new term namely "Complete Applications", whether it be for official plan amendment, zoning by-law amendment, of other application.
In relation to an official plan amendment, Section 22 (6) now requires the Council to have the prescribed information (22.4) and other information (22.5) before the application is considered complete. It is this combination of requirements that our Joseph must meet beforehand that will prevent him from "jumping over Council" and heading to the Ontario Municipal Board.
How long does Council have to decide if Joseph has filed a Complete Application?
The answer is thirty days from the date Joseph deposits his filing fee [Section 22 (6.2)].
What can Joseph do if he is of the opinion that he did file a Complete Application for an official plan amendment (Section 22.6)?
Joseph may present a Motion to the Board in the following two instances:
- Within 30 days of Joseph receiving a negative notice of the completeness of his application from Council.
- When Council has failed to give notice, has failed to decide if Joseph's application was complete.
Please note similar provisions for zoning Section 34.10.6 and plans of subdivision 51 (19.3) apply. However, for consent applications [Section 53 (19.3)] is the authority for a Motion to be brought concerning whether a consent application is complete.
On the Motion, the Board will decide (with no right of appeal to the Boards' decision) if the application by Joseph was complete or not.
Please remember, the appeal period available to Joseph only begins once the application is complete.
As mentioned, each municipality may amend its official plan, to include requirements that it sees fit. Likely, this will vary from municipality to municipality resulting in higher costs to applicants in certain jurisdictions and lower in others.
Applicants who "move" in various jurisdictions will need to be very careful and review each municipalities' requirements.
I began this summary on Bill 51 with three questions:
Does Bill 51 – amendments to the Planning Act regarding complete applications – provide municipalities with more or less control over the planning process?
The answer is clearly that Council has more control over planning issues.
Will municipalities conclude that the amendments make it easier or more difficult for the developer to "race to the Board" for a decision, simply ignoring as much as possible Councils' decision?
Are there any losers?
The process will be more transparent. Our friend Joseph will know well in advance of any trip to the Board just what the Council expects him to provide.
This will also give Joseph an idea of costs. Joseph can take advantage of the fact that he is now encouraged, even expected to consult with municipal staff. From my experience before the Board, this has been the exception up until now.
BILL 51 6 © 2007 Nelligan O'Brien Payne LLP