Bill 108: Proposed Changes to the Land Use Planning Appeal Process | Real Estate Law

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Bill 108, More Homes, More Choice Act, 2019 is currently in its second reading. The bill aims to increase the supply of housing in Ontario to make housing more affordable. It proposes to make significant amendments to the Local Planning Appeal Tribunal Act, 2017 and the Planning Act, amongst other acts, to speed up the development process.

The proposed amendments include significant repeals of amendments to the land use planning appeal process introduced in Bill 139, Building Better Communities and Conserving Watersheds Act, 2017. Bill 139 shifted greater authority into the hands of municipal councils and local planning authorities and away from the Local Planning Appeal Tribunal (“LPAT”) which replaced the Ontario Municipal Board (“OMB”).

Here are the proposed major repeals that will make the LPAT process more similar to the OMB process:

• Appeal Grounds

Bill 139 heavily restricted the available appeal grounds to decisions that are inconsistent with a provincial policy statement, fail to conform with or conflict with a provincial plan or fail to conform with the upper-tier municipality’s official plan. The proposed legislation will repeal these limitations to the right to appeal and give applicants broader appeal options regarding municipal decisions, including challenging municipal decisions on the basis that they fail to represent sound land use planning.

• Appeal Process

Bill 139 eliminated de novo hearings and created a two-step appeal process. In this process, if the Tribunal overturns a municipal decision, the matter returns to the municipal council for reconsideration. The Tribunal cannot substitute its own decision until the matter comes through a second appeal process. The proposed legislation repeals this two-step process and restores the single hearing process previously utilized at the OMB.

Here are some of the other changes proposed in Bill 108:

• Limitations on Witness Examination and Cross-examination

The Tribunal will have the power to limit any examination or cross-examination of a witness if the Tribunal is satisfied that all matters relevant to the issues in the proceeding have been fully and fairly disclosed or in any other circumstance the Tribunal considers fair and appropriate.

• Submissions by Non-parties in Writing

The proposed legislation will limit submissions by non-parties to the proceeding to be in writing. Previously, non-parties were permitted to make oral submissions at LPAT and OMB hearings. This change seeks to streamline the appeal process.

• Mandatory Mediation

The Tribunal will be able to make rules that require mandatory mediation or alternative dispute resolution in specified circumstances prior to a hearing. The former OMB process encouraged mediation, but it was not mandatory. This is designed to encourage parties to resolve disputes without costly and lengthy hearings.

• Shorter Appeal Timelines

Bill 139 increased some of the timelines for municipal councils to reach a decision on applications before an appeal could be filed. The timelines were extended by 30 days to 210 days for an official plan amendment, 150 days for a zoning by-law amendment and 210 days for a related official plan and zoning amendment.

The proposed legislation will decrease the timelines to be shorter than they were prior to Bill 139. The timelines have been decreased to 120 days for official plan amendments, 90 days for zoning by-law amendments and 120 days for plans of subdivision.

• No Opinions From the Divisional Court

Previously the Tribunal was permitted to write to the Divisional Court for an opinion on a question of law, sometimes called “stated case”. The proposed legislation will repeal this process.

Other Interesting Notes

Despite many repeals of the new processes created in Bill 139, the proposed legislation will maintain some of the processes introduced in Bill 139, including the mandatory Case Management Conferences and the two-year restriction on requests to amend secondary plans.

While the proposed legislation will likely be subject to further revisions after the second reading and the transitional regulations have not been released, the available draft gives us a good idea of what changes to expect. It appears that the legislation aims to restore some of the power into the hands of the Tribunal that was removed by Bill 139 and shifts the focus of hearings towards making better land use planning decisions,  while also promoting the efficient use of Tribunal resources.

Landowners, municipalities, developers, and future home buyers, amongst others, should consider speaking with a lawyer about how these proposed changes could impact them. The More Homes, More Choice Act, 2019 is a welcomed piece of legislation from the perspective of developers and property owners. Critics of Bill 139 believed that the LPAT process placed too much emphasis on the political powers of municipal councils instead of making planning decisions based on the principles of sound land use planning. The elimination of de novo hearings in Bill 139 was a marked break from the decision-making process. The Tribunal would be much less restricted with the re-introduction of de novo hearings if Bill 108 passes and becomes law.

Please contact Michael Paiva for more information, or if you require assistance with a municipal or land use planning matter.