Recent amendments to the Planning Act are so comprehensive that they will affect every development from the initial concept through to the final approval.
With top-down planning making a resurgence, municipalities have new powers to control design, put conditions on zoning, and have the final word on conversion of employment lands.
Developers will see the end of speculative applications, and will require their lawyers to tackle the question of approvability well before an application is made.
The changes wrought by Bill 51 kick in right at the beginning of the development process. They have imposed a considerably higher level of obligation on applicants by requiring applications to be supported by planning reports on a full range of topics as required by the municipality. Appeal periods don’t begin to run until there is a “complete application.”
Dennis Wood, of Wood Bull LLP, believes the changes arise from complaints by municipalities that developers were not giving them the full goods - subverting the process by only producing reports when the matter reached the Ontario Municipal Board. While there is a provision that enables an applicant to appeal that an application is complete, Wood does not think it will be used very often.
“Any time a matter goes to the board, it takes several months. Applicants will be playing off the cost of the additional report against legal fees, costs, and time lost,” he says.
Another change kicks in during the site planning process. There has always been a hierarchy of planning documents.
“First there is the official plan,” explains Leo Longo of Aird & Berlis LLP. “Second are zoning bylaws that implement the official plan. Thirdly is the building permit. Now there is an intervening step between the second and third stage called site-plan approval. This allows the municipality a finer level of control to dictate where development occurs.
“For example, if you want to build a factory, the municipality can control the location, the parking, and the access point. It can ensure that the development is sustainable through the character of the design, the scale of the development, transit support, and environmental requirements.”
Longo expects that the new powers will have a dramatic effect on what can be dictated to an individual owner. “Maybe a green roof or an LED [lighting] building. It’s a fundamental change.”
Another new power will affect the rezoning process.
“Up to now, it has not been lawful for municipalities that are rezoning to impose conditions,” says Longo. “When they subdivided or approved a site plan, they could ask the landowner to enter into an agreement to address certain appropriate things, but never on a zoning. Now the municipality can do so, as long as they state the nature of the condition, such as rezoning brownfields, securing assisted housing, or dealing with a heritage building.”
Applications to convert employment lands will also be the victim of a new power to deny an application without right of appeal.
“It has been implemented by a bookends approach,” says Longo. “At one end, the provincial policy statement says that no conversion can occur to a non-employment use, except through the municipal official plan process. The provincial policy statement has a retail use as an employment use, so this is benign when converting industrial land to retail land, but it would preclude industrial to residential.
“Under the Growth Plan, an individual developer cannot initiate and can’t appeal an unsuccessful conversion to a non-employment use, such as industrial land to a major retail development, like a large shopping centre. The idea in principle is for conversions of this type to only occur when the municipality wants them to. I predict a large part of the mandated five-year review of official plans will be treated by developers as a conversion opportunity. There won’t be any other way to get at it.”
Wood considers that the inevitable effect of including these extra steps in the planning regime is to favour those who have access to sources of capital.
“It’s a considerably more expensive exercise, because of the level of expertise required. It plays to the side of the house where there are already deep pockets and makes it harder for new entrants,” says Wood. “Land development is a risky business. Planning policy is written in general terms. There are a range of uses and densities that are theoretically permitted, but you have to go through a process, which, generally speaking, is hotly contested.”
The requirement to provide more detail to the municipality at the outset, when you’re uncertain what the development will be like when it’s approved, introduces a high level of uncertainty.
“For lawyers, it is making planning law a specialty practice,” says Wood. “You must encourage clients to do the right thing from the beginning - to properly study projects and get in proper documents. In the past, when developers would option a property, they would put in a bare-bones application to see if it would get support. These changes completely discourage that sort of speculative application.”
Wood and Longo agree that lawyers will have to be constantly mindful of provincial planning policy. Previously, when the municipalities and the Ontario Municipal Board came to make their decision, they applied provincial policy in place when the application was made. This has been changed to make policy at the date of the decision the relevant standard.
“If government policy changes, the OMB and the councils have to have regard to it,” says Longo.
“It is essential to consider all legislation as an overarching set of policies that affect almost every development application to be made in the future,” says Wood.
“That’s not just the Planning Act as affected by Bill 51, but related statutes such as Places to Grow Act, Growth Plan, and the Greenbelt Act, and the provincial policy statement. There is a greater responsibility on lawyers to take a hard look at approvability of a project before the application is made.”