Municipal Development Law Firm Explains Due Diligence and Application Tips

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Development is a broad term that encompasses projects that result in a change of land use, the construction of or addition to a building(s), or to the creation of a parcel of land. It can be a long and sometimes frustrating experience to see a development project come to fruition.

Development applications require extensive preparation and investment. It takes time – approvals must be sought from the municipality and often from other agencies too, and there are often unexpected delays in the process.

Generally, there are many factors that can impact your development, including:

• How the land is designated in the Official Plan;
• How the land is zoned, including setbacks, density and height restrictions set out in the zoning by-law;
• Characteristics of the neighbourhood;
• Community Improvement Plans; and
• Applicable provincial policies such as the Growth Plan, Provincial Policy Statement, Oak Ridges Moraine Conservation Plan and Greenbelt Plan.

If you are buying a piece of land for the purpose of development you should consider and seek advice on each of these factors prior to making an offer, or make any offer conditional upon certain approvals being obtained.

Official Plan and Zoning By-Law

Section 17 of the Planning Act requires a municipality to have an Official Plan (“OP”). An OP is a legal document that describes policies and objectives for future land uses and reflects the community’s vision for future change and development.

The OP also establishes policies for the built environment and protection of the municipality’s natural environment. A municipality’s zoning by-law (“ZBL”) is the legal document that implements policies and objectives described in the OP and regulates the use and development of buildings and land.

When planning a development project you should consider the location and the position the municipality’s OP takes on your proposed development. Consider the following:

• Is it in line with the municipality’s vision for the area?
• What sections of the ZBL will apply?
• What restrictions apply (such as setbacks)?, Will a minor variance be required?
• If the building is commercial, can you build up? do you have adequate parking?
• What about the use of a building – was it legal non-conforming? has it been abandoned?
• Are there any environmental tests that are required?

Other Applicable Legislation and Agreements

If you are considering building a dwelling on a waterfront lot, there will be additional legislation to consider. For example, you may require the approval of a conservation authority to build on a lot that is adjacent to a body of water. If you are looking to demolish or build an addition on an older building, then the Ontario Heritage Act may apply.

If you have recently purchased a lot, there may be a site plan agreement on title that may limit what can be done with the property. It is also possible that the previous owner signed a conservation agreement.

Land Use Planning Expertise

Depending on the nature and complexity of your development application, it would be prudent to engage a qualified land use planner who can give you independent advice regarding the planning merits of your development application or proposal.

Planners are essential to development and provide valuable support and assistance throughout the development process. Planners can prepare various reports and evidence in support of a development application which is usually considered by the municipality in conjunction with the municipality’s own staff planning reports. No substantial development can be approved without land use planning support.

Land Survey Plan

A land survey plan is an important legal document that determines and delineates boundary locations, building locations, physical features and other items of spatial importance. Survey plans often reveal hidden deficiencies such as building encroachments that must be addressed before your development can be approved.

Will you require an easement agreement with a neighbour or the municipality? It is best to address such issues in your application to avoid unnecessary delays at a later date. Retaining a surveyor at the outset is usually advisable and is required for any land severance or consent.

Pre-Consultation Meetings

Before submitting a planning application, it is useful to meet with the municipality’s planning staff to discuss your proposal to gain a clearer understanding of what is required to submit a formal application. Often you will find that there are extra studies that you will be asked to provide, such as a parking study or environmental impact assessment report. Unexpected issues such as encroachments or easements may need to be addressed.

The public is not involved in any pre-application consultations with the municipality as it is not yet considered a public process. At this stage it is an administrative process to identify what is required to submit a development application. Planning experts and legal counsel are often present at pre-consultation meetings and can assist in the resolution of potential issues.

Neighbourhood Groups

Another group to consider consulting with at the early stage are your neighbours. Are there any neighbourhood groups that may oppose your project?

Do not underestimate the voice that such groups can have; engage with them and get them onside or at least ensure they are not blindsided by the development application. Allaying their fears may be as easy as sending them a courtesy letter outlining your planned development and how you will be accommodating, for example, potential environmental concerns. It is not unheard of that a neighbour or group will appeal a decision of the Committee of Adjustment that has allowed a variance for a development.

Preparing for a Local Planning Appeal Tribunal can be costly and time-consuming and can delay your development project, so resolving possible issues before your application is heard is advisable.

If you are considering a development proposal or are having an issue with the application process, please contact Michael Paiva at 519.729.5038 or at 416.800.1733  for more information.