Some old, some new and not much borrowed from Bill 139

Écrit par Andrew L. Jeanrie

The Ontario Government has presented its "Action Plan" to address the "housing crisis", with significant changes to the process for development approvals and appeals. The changes will also benefit commercial and industrial development.

On May 2, 2019, Ontario’s Minister of Municipal Affairs and Housing announced its comprehensive housing initiative, entitled More Homes, More Choice: Ontario’s Housing Supply Action Plan. Second Reading was given on May 14, 2019. To date, the implementing regulations have not been released.

The strategy of the Action Plan changes involve a combination of planning initiatives and a wide range of legislation being amended. The overall thrust appears focused on enhancing the procedural rights of applicants, imposing some restrictions on costs, and increasing flexibility and certainty for developers.

Under the Action Plan, the Minister is proposing amendments to 13 statutes:

1. The Planning Act
2. The Local Planning Appeal Tribunal Act, 2017
3. The Development Charges Act, 1997
4. The Ontario Heritage Act
5. The Education Act
6. Conservation Authorities Act
7. Environmental Assessment Act
8. Environmental Protection Act
9. Endangered Species Act
10. Occupational Health and Safety Act
11. Workplace Safety and Insurance Act
12. Cannabis Control Act
13. Labour Relations Act

It is beyond the scope of this article to go into details on the changes to each of these Acts, and, as such, this article will focus on some of the key changes for developers and land owners.

Changes to the Planning Act (Schedule 12)

The strategy behind the Planning Act changes appears to be a return to the pre-Bill 139 (the LPAT Bill) planning processes along with new controls on the costs imposed on developers in bringing new projects to market. Some key amendments include:

• Eliminating the old section 37 regime of negotiated "one off" benefits for increases in height or density and the alternative parkland standards under section 42, and replacing them with a new community benefits regime (also located in section 37 of the Planning Act).The new community benefits regime would allow municipalities to set a fixed percentage of land value that is to be paid to the municipality based on land value prior to a building permit being issued.The changes would also:
  • Make upfront development costs more predictable by replacing existing density bonusing provisions, development charges for discounted services (i.e., soft services), and in some cases, parkland dedication, with a new single charge per municipality that is tied to a land value calculation.
  • Municipalities would need to adopt a community benefits by-law with a single rate throughout the municipality.
  • Applicants can appeal the land value assessment decision if they disagree with the municipality's assessment.
  • While the amount of the community benefits are fixed by the process the parties continue to have room to agree on how they are to be spent.
  • The Province will set a cap for the community benefits charge in a regulation.

  If ultimately implemented as drafted in the first reading bill, this new community benefits charge could dramatically increase certainty of costs and reduce the risk of an "unfair" process whereby one proponent can be given preferential treatment over that of another as is a risk in the current section 37 regime.

• Aiming the inclusionary zoning tool to areas:
  • that are anticipating and/or experiencing high-growth and are near higher order transit; and/or
  • authorized by the Minister through the development permit system.
• Remove the appeal rights related to the implementing documents.
• Reducing planning decision timelines:
  • for Official Plans, from 210 days (Bill 139) to 120 days;
  • for Zoning By-laws, from 150 days (Bill 139) to 90 days; and
  • for Plans of Subdivision, from 180 days (Bill 139) to 120 days.
• Permitting additional residential units for detached, semi-detached, and row houses in both the primary dwelling and ancillary building structure.
• Limiting third-party appeals of:
  • Plans of Subdivision; and
  • approval authority non-decisions on Official Plans and Official Plan Amendments.

Changes to the Local Planning Appeal Tribunal Act, 2017 and Appeals Process (Schedule 9)

• Permitting the Local Planning Appeal Tribunal (LPAT) to make its decision based on the best planning practices, rather than simply being based on consistency or conformity with higher order planning instruments (back to the pre-Bill 139 regime).
• Empowering the LPAT to make a final determination on appeals, rather than merely making a recommendation back to Council on first step appeals (back to the pre-Bill 139 regime).
• Re-instating "de novo" hearings in all cases (back to the pre-Bill 139 regime).
• Requires case management conference in certain appeals.
• Removing existing restrictions on a party’s ability to introduce evidence and call and examine witnesses at hearings (essentially back to the pre-Bill 139 regime).
• Limit submissions by non-parties to a proceeding to written submissions and such non-parties may still be examined or required to produce evidence by the Tribunal (modified pre-Bill 139 regime, but enhanced participant rights as compared with the Bill 139 regime).

Additional Actions

• Appoint more LPAT adjudicators by investing $1.4 million in 2019-2020 in order to address the backlog of cases and to manage ongoing and future caseload.
• Charging different fees and moving towards a cost recovery model.
• Confirmed the Province will not touch the Greenbelt.
• Consider previous suggestions to loosen controls on conversion of specific employment areas.
• Evaluate changes to the Provincial Policy Statement to:
  
  • encourage the development of more housing and increase the range of housing types; 
  • reduce barriers and costs for developers and provide greater predictability in the planning process; and
  • modernize planning and development policies to reflect Ontario’s changing needs.

Changes to the Development Charges Act (Schedule 3)

The Minister is proposing changes to the Development Charges Act, including:

• Allow for the payment of development charges for five types of developments (rental housing, institutional, industrial, commercial and non-profit housing) in six equal installments commencing from the date of occupancy.
• Freezing the development charge rate applied to a project at the rate in force where an application is made for site plan approval (where applicable) or a re-zoning application (if neither is applicable, calculation of development charges essentially reverts to the existing system). The government will introduce through regulation restrictions on the length of any freeze.
• Encouraging the development of new apartments and affordable housing, by allowing development charges for rental housing and not-for-profit housing to be paid over a five year period, instead of upfront.
• Making the cost of development more predictable:
  • freezing development charge rates at an earlier stage in the development process (e.g. at the time of zoning or site plan application), but to be paid subsequently, at the "traditional" time (e.g. at building permit issuance); and
  • covering municipalities’ waste diversion costs (but not landfill sites/services, and facilities and services for the incineration of waste).

Changes to the Building Code

The Minister is proposing changes to the Building Code, such as:

• eliminating the requirement for new homes to provide the infrastructure for an electric vehicle charging station; and
• harmonizing the Ontario Building Code with the National Codes.

Changes to the Ontario Heritage Act (Schedule 11)

The Minister is proposing changes to the Ontario Heritage Act, including:

• making new mandatory standards for heritage designation by-laws across the Province;
• creating new time limits:
  • to confirm a complete application for alteration and demolition; and
  • for designation decisions; and
• establishing the process whereby municipal decisions on designations and alterations to heritage properties can be appealed to the LPAT for a final decision rather than the Conservation Review Board which presently only makes non-binding recommendations to the municipality.

Changes to the Education Act (Schedule 4)

The Minister is proposing changes including the following:

• permitting only "reasonable" increases in education development charges with the intent of making housing more affordable;
• allows for localized education development agreements that if entered into between the Board and an owner of land, would allow the owner to provide a lease, real property or other prescribed benefit to be used by the Board in exchange for the Board agreeing not to impose education development charges against the land; and
• allow School Boards to use revenue from education development charges, with the Minister's approval, for innovative and lower-cost alternatives to site acquisition.

With respect to the Education Act, it is proposed that the Province will have greater oversight of School Boards proposed expropriations for school sites or any other land.

Changes to the Environmental Assessment Act (Schedule 6) and the Environmental Protection Act (Schedule 7)

The Minister is proposing changes to both the Environmental Assessment Act and the Environmental Protection Act, including:

• placing limits on when a third party (opponent) can make a request to the Minister to require a project that is subject to a class environmental assessment to be subject to a more detailed individual environmental assessment;
• only allow requests to proceed where there is a basis to establish that further environmental assessment review is appropriate based on a matter of prescribed provincial importance or an aboriginal/treaty right issue;
• address duplication and streamline the processes for projects that pose little risk to the environment and by recognizing other planning processes;
• reducing the amount of soil sent to landfill by making it easier and safer to reuse soil; and
• reducing delays by improving the service standard.

Changes to the Conservation Authorities Act (Schedule 2)

The Minister is proposing changes to the Conservation Authorities Act:

• define Conservation Authorities’ core programs and services (e.g., flood protection, other natural hazards and protect sources of drinking water), and only require municipalities to pay for those programs and services;
• Conservation Authorities can provide other programs and services, but if financing by the municipalities is required an agreement between the two must be entered into; and
• standardize Conservation Authorities’ role in municipal planning to reduce overlap which will make approvals faster and less expensive.

Changes to the Endangered Species Act, 2007 (Schedule 5)

Proposed changes to the Endangered Species Act, 2007, include:

• extended time periods for the Minister to list a species at risk from the date of receiving a report from COSSARO classifying a species as at risk, and extending the power of the Minister to request a reconsideration;
• ability of the Minister to temporarily suspend some of the prohibitions relating to species at risk that are designated for the first time;
• give the Minister the ability to enter into "landscape agreements" with a person who would otherwise be undertaking activities that are prohibited. With a landscape agreement, the person can undertake specified beneficial actions to assist in the protection or recovery of a species; and
• creation of a Species at Risk Conservation Fund to be funded by persons paying a charge as a condition of a permit or other authorization entered into under the Act to engage in activities that would otherwise be prohibited.

As proposed these amendments will result in a dramatically different land use planning regime in Ontario than the one that exists today. Bennett Jones will continue to monitor these amendments (which are expected to be approved in June 2019) and provide updates as the final legislation and the regulations (as well as the critically important transition provisions) come into place.

Given the comprehensive nature of these changes, the impact that they will have on any development applications, and the Provinces stated goal of increasing housing supply, we would expect that the Province will be bringing this legislation (or at least large parts of it) into force in relatively short order.