Real Estate Lawyer Tips: Land Severances – What You Need To Know
Land Severances (Consents): What You Need to Know About the Application and Appeal Processes
Read Time: 3-4 Minutes
A land severance, also called a “consent”, occurs when a piece of land is authorized to be separated from a larger lot, forming a new lot or parcel. Lots can be created by an approved plan of subdivision, the granting of a land severance or, where you wish to further subdivide lots created through an approved plan of subdivision, a by-law exemption. A land severance is required to sell, mortgage or enter into a long term agreement for a portion of your land. Land severances are governed by the Planning Act.
Municipal Authorization
All land severances require municipal approval. This allows the municipality to ensure that the severance will not harm the community. The municipality will ensure that there are adequate services in the community, the land is suitable for the proposed purpose, the official plan and zoning by-laws are complied with and that future planning goals are not inhibited. The municipality will consider any negative impacts the severance might have on the neighbours or the community as a whole, and will evaluate whether the severance and any proposed buildings will be consistent with the “character” of the neighbourhood. The municipality may also consider whether any minor variances to zoning by-laws are required.
The Application Process
The application process for land severances varies based on the municipality. Most municipalities have an approved official plan which outlines the policies and procedures for land severances. An official plan can usually be located on the municipal website. Each municipality will have a consent-granting authority, such as a land division committee or committee of adjustments, which reviews these applications and makes decisions.
Applications may require various documents, such as plans, sketches, permits or approvals. Once the consent-granting authority has received a complete application, they have several months to reach a decision. The consent-granting authority must make a public notice of the application prior to making their decision. Any person or public body is permitted to make submissions to the authority regarding the application. The consent-granting authority may also consult with other agencies, boards or authorities to assist them in reaching a decision.
Once a decision has been reached, the consent granting authority will send a formal notice of decision to the applicant and any other interested parties within 15 days. Some applications may be approved with conditions attached, such as requirements for road widening or a minor variance application. Generally, conditions must be satisfied by the applicant within one year. The final step is to register the land severance in the land registry office.
The Appeal Process
Decisions rejecting a proposed consent can be appealed to the Ontario Municipal Board (the “OMB”) (soon to be the Local Planning Appeal Tribunal (the “LPAT”). (See our article, “Major Changes Coming to the Ontario Municipal Board”, for more information). Appeals must be submitted within 20 days of the notice of decision being given. Appeals can be filed with the municipal consent-granting authority along with written reasons for the appeal and the required fee.
Decisions can be appealed, amongst other reasons, where:
- The consent-granting authority fails to reach a decision within the required time limit;
- The decision is inconsistent with the municipality’s official plan;
- The decision is inconsistent with the Provincial Policy Statement; or
- The decision is not supported by applicable land use planning principles.
The OMB and the LPAT encourage mediation, but a hearing will be held if the parties are unable to resolve the issues. It is vital to hire an expert, such as a land use planner, to assist with a consent application and appeal. (See our article, “Land Use Planning Evidence: The Basis for your Municipal Appeal”, for more information). Experts can strengthen your position and provide the necessary insight to challenge a municipal decision before the tribunal.
Conclusion
Land severance applications and appeals can be lengthy, time-consuming and complex matters. It is important to understand the procedures and timelines to complete an application or appeal. Lawyers who maintain municipal law as a core area of practice can assist with navigating through the application or appeal process. Additionally, lawyers often have vast networks of experienced and qualified experts they can tap into to find the strongest expert to advance your application and appeal.
Please contact Michael Paiva for more information about land severances, or if you require assistance with a land use planning application or appeal.
