Bill 139 – final stages and implementation

First regulations (December 7, 2017)

On December 7, the government posted two proposed regulations under Bill 139 on the EBR registry:

EBR 013-1788 — transition provisions

EBR 013-1790 — provisions about minimum information requirements for material sent to the tribunal

The Ministry’s press release

The Hon. Ottawa Centre MPP Yasir Naqvi’s notice to the community

The comment period for these regulations is until January 21, 2018.

Proclamation date announced

On February 27, the government announced that Bill 139 would be Proclaimed on April 3, 2018.

More regulations!

On March 5, by email a letter was received from Laurie Miller, Director, Provincial Planning Policy Branch, Ministry of Municipal Affairs,

+ making reference to regulations under the Local Planning Appeal Board Act that were open to comment on December 7, with comments due Jan 21!  (On a date unknown, a link to these proposed regs was added to the EBR notices above.)  They will be formalized shortly.  Here is what was proposed.  They deal primarily with timelines for proceedings (varying from 6 to 12 months), time limits for parties to make their case at an oral hearing (75 minutes), and, except for the Tribunal itself, inability to examine a party or a witness;

+ announcing that 9 amended regulations under the Planning Act will come into effect on April 3 and suggesting that, apart from transition provisions and technical changes, these amendments will have the effect of “requiring explanations of how planning proposals are consistent/conform with provincial and local policies and clarify requirements for municipal notices”.  Here is the list:

(NOTE: On the e-laws web site, the Regulation being amended also shows the new texts that come into effect on April 3.  With the exception of OReg 67/18, the amendments deal mostly with technical issues such as changing “Board” to “Tribunal” or to conform to provisions of the Planning Act as amended by Bill 139.)

Ontario Regulation 67/18 “Transitional Matters – General” – amending Ontario Regulation 174/16 “Transitional Matters Relating to the Smart Growth for Our Communities Act, 2015”

Ontario Regulation 68/18 – amending Ontario Regulation 543/06 “Official Plans and Plan Amendments”

Ontario Regulation 69/18 – amending Ontario Regulation 549/06 “Prescribed Time Period – Subsections 17 (44.4), 34 (24.4) and 51 (52.4) of the Act”

Ontario Regulation 70/18 – amending Ontario Regulation 551/06 “Local Appeal Bodies”

Ontario Regulation 71/18 – amending Ontario Regulation 200/96 “Minor Variance Applications”

Ontario Regulation 72/18 – amending Ontario Regulation 197/96 “Consent Applications”

Ontario Regulation 73/18 – amending Ontario Regulation 545/06 “Zoning By-Laws, Holding By-Laws and Interim Control By-Laws”

Ontario Regulation 74/18 – amending Ontario Regulation 544/06 “Plans of Subdivision”

Ontario Regulation 75/18 – amending Ontario Regulation 173/16 “Community Planning Permits”

On March 10, Min. Naqvi held a well attended town hall.  Here is the deck that was handed out and to which staff and Min. Naqvi spoke.

On March 12, we received notice that the regulations under the LPAT Act alluded to above are now published and will come into force on April 3:

O. Reg. 101/18 – Transitional Matters

O. Reg. 102/18 – Planning Act Appeals

They appear unchanged from what was proposed.

No word on regulations under the Local Planning Appeal Support Centre Act but Min. Naqvi insists that the Centre will be open for business on April 3 and that there will be regional offices.

On March 14, Erwin sent seven detailed implementation questions to Min. Naqvi and other officials.  His senior policy advisor promised to respond as soon as possible.  See below (“April 28“) for responses received.

At the March 10 town hall meeting, Min. Naqvi had mentioned that there were a few days left to comment on proposed regulations.  A follow-up query revealed, on March 22, that proposed Rules of Practice and Procedure for the LPAT have been posted on the Environment & Land Tribunals Ontario (ELTO) web site for the past month, with the deadline for comment March 23!  Find them here:  Part I largely mimics the current Rules of the OMB while Part II applies to the new regime introduced by Bill 139.  Erwin hastily sent in some comments.

It was also revealed that so far two members of the Board of Directors for the Support Centre have been appointed and that a third will follow shortly.  Details here. They are said to be hard at work on eligibility criteria etc.; there is no indication that there will be a consultation about them!  The Centre’s web site is also supposed to go live on April 3.  As well, ELTO has held two (identical) webinars about the new regime, with a third still to come, on March 27.  Go here to register; several supporting documents are available on the web site.

Heritage Ottawa forum on Bill 139

On March 21, at the Ottawa Public Library, Heritage Ottawa presented three speakers to discuss the OMB reform: Marc Denhez, Jay Baltz and Min. Naqvi.

Denhez’ presentation (text here), accompanied by punchy graphics, in large part repeated the points he made at the AGM of the Federation of Citizens’ Associations last June.  The early history of land use planning in Ontario was “planning” in name only: Nothing really was “arranged beforehand” and to a significant extent it still isn’t.  I.e., we need planning criteria (a framework of underlying principles) that reflect our values and have public buy-in.

The current reforms are an improvement but the key issues remain, namely (1) chronic uncertainty; (2) as-of-right development in urban areas is uneconomic (read: land prices build in the expectation that upzoning will be achieved).

Baltz (his slides here) brought the community perspective, describing the multiple barriers communities face when dealing with the OMB.  Like Denhez, he noted the paternalistic origin of the OMB, a role from which it has not fully evolved.  The process is rife with uncertainty.  He suggested that the current reforms may equalize access, but the old boys’ club will still be there and whether uncertainty will be reduced remains to be seen.  The disconnect between zoning, official plans and the Provincial Policy Statement has not been addressed.

Min. Naqvi summarized the reforms, which attempt to create more certainty around planning documents.  They defer more to the municipality, and will prioritize mediation to resolve disputes.  He noted that the Support Centre took the 15-year old Human Rights Legal Support Centre as a model.

Media coverage

CBC News, April 2, 2018, “The Ontario Municipal Board will soon be no more. Here’s what that means for you” by Leah Hansen — with quotes from Jay Baltz and Councillor Leiper.

TVO The Agenda, April 6, 2018 — Steve Paikin with lawyer Patrick Harrington, Neptis Foundation executive director Marcy Burchfield, and the Toronto Star’s Martin Reg Cohn:

April 3, 2018

Bill 139’s Planning Act changes came into effect today, as did LPAT’s new Rules of Practice and Procedure.  There appear to be few substantive differences between the Feb 23 draft of the Rules and the final version, except for this additional Rule in Part II:

26.27 Tribunal in Receipt of Notice from Minister In the event that the Tribunal receives notice from the Minister responsible for the Planning Act (pursuant to Section 38(1)(b) of LPATA) that a matter of provincial interest is, or is likely to be, affected by the plan or by-law or the parts of the plan or by-law in respect of which the appeal is made, then Part I of the Rules will apply to that appeal proceeding.

I.e., if the Minister wishes to intervene in an appeal, the old rules apply.

As for the LPA Support Centre, it officially opened its doors today as well.  Currently appointed to its Board are:

2. MEMBER (PART-TIME) LEACH, MARK 09-Mar-2018 – 08-Mar-2019 $200 PER DIEM TORONTO
3. INTERIM CHAIR PACE, ANNA 21-Mar-2018 – 20-Feb-2019 $350 PER DIEM TORONTO

Its web site features a number of helpful FAQs and there is an online form to request assistance. Its toll-free number is 1-800-993-8410.

Some implementation notes – April 28, 2018

Here are two briefing notes written to help clear up some points of confusion that have arisen:

+ some notes on the new regime covering

  • what types of appeals fall under the new regime, and which do not;
  • what can no longer be appealed (also covering restrictions that have been introduced earlier);
  • and more;

+ some questions put to the Ministry and its responses including

  • how the evidentiary record will be established;
  • what happens between Council passage and Ministerial approval;
  • and more.

May 7, 2018

Today the chair and executive director of the LPA Support Centre responded to a few questions put to them on May 1.  To the question:

When will the community be consulted on the modus operandi of the Centre?

Anna Pace and Mary Lee responded:

We are glad to be here and look forward to helping many people and groups engage meaningfully in the planning process. The inquiries and requests for help we are receiving in the support centre’s early days (including six from the Ottawa area) are helping us define the delivery and decide how we can best use our resources to serve the public.

When asked when we may expect to see the creation of an Ottawa office, they answered:

There are no current plans to create regional offices for the Local Planning Appeal Support Centre. The centre expects to deliver most of its services over the phone or by videoconference. In cases where an in-person meeting is required (representation at a LPAT hearing or case management conference, for example), either in-house staff will travel or we will hire someone locally to work on the centre’s behalf.  

A question on the odd lengths of appointment of Board members and what the full complement of the Board is expected to be (the Act allows up to seven), was referred to the Public Appointments Secretariat.

Ottawa Board member Carolyn MacKenzie’s LinkedIn profile is here.

June 1, 2018

Answers to some further questions came forward today from the LPASC:

+ Asked to confirm that in a one-tier municipality there is no right to appeal an Official Plan or comprehensive OP Amendment, the short answer is “correct.” The long answer:

Regarding your question on the right to appeal, subsection 17(36.5) of the Planning Act precludes the right to appeal a decision where the approval authority is the Minister. This new subsection must be read in the context of ‘exemptions’ under subsections 21(3) and 17(9) of the Act. Where there is no Ministerial exemption, see section 26(6) of the Act, subsection 17(36.5) would apply to make the Minister’s decision the final decision with no rights of appeal to the LPAT.

+ The Minister’s deck repeatedly refers to “major” land use planning decisions or appeals.  LPASC confirmed that this term is not defined in the Planning Act.

+ Asked to confirm that an amendment to an existing Secondary Plan is immediately appealable (i.e., that the potential 2-year no-appeal period applies only to new SPs), the short answer is “correct.” The long answer:

With respect to your question about secondary plans, subsections 22(2.1.1) and 22(2.2) of the Act provide a two-year timeout on requests to amend a secondary plan, unless permitted by municipal council. Please also read section 14 of the O.Reg. 174/16 of the Act for transitional matters. We are not aware of any provisions that would prevent an appeal to an amendment to a secondary plan within the 2-year timeout period (unless, of course, the amendment was not appealable for other reasons such as it being subject to Minister’s approval).

I expect this to round out this web site’s assistance in making sense of the reforms to Ontario’s land use planning system.  Be aware that the Ministry of Municipal Affairs and Housing has a helpful set of nine Citizens’ Guides to Land Use Planning.

It was quite a journey!