August 14, 2017…

August 14, 2017

Ken Peterson, Manager
Ministry of Municipal Affairs and Housing
Local Government and Planning Policy Division
Provincial Planning Policy Branch
777 Bay Street , Floor 13
Toronto Ontario, M5G 2E5

Dear Mr. Peterson:

Re: TRCA Comments in Response to Bill 139 - (Schedule 3) the Proposed Building Better Communities and Conserving Watersheds Act, 2017: Amendments to the Planning Act (EBR # 013-0590)

Thank you for the opportunity to provide comments on the proposed changes to the Planning Act and Ontario Municipal Board Act, as part of Bill 139 – the Building Better Communities and Conserving Watersheds Act, 2017. The Toronto and Region Conservation Authority (TRCA) has a strong interest in the proposed legislative changes, given our role as a public commenting body under the Planning Act, as a body with delegated responsibility to represent the provincial interest for natural hazards (section 3.1 of the Provincial Policy Statement (PPS)), a service provider to municipalities supporting their implementation of provincial policy, and as a regulator under section 28 of the Conservation Authorities Act (a development regulation that can affect planning matters).

In recent years, TRCA has provided comments and recommendations to the Province as part of its ongoing review to improve the scope and effectiveness of the Ontario Municipal Board (OMB) while ensuring growth and development continues to occur in sustainable way. We are pleased that many of our comments have been heard and that many of them have been reflected in the proposed legislative changes to help improve Ontario’s land use planning system.

General Comments: TRCA staff generally support the legislative changes proposed through Bill 139. We are pleased to note that many of our previous comments were addressed to varying degrees, including:

•   creating the LPASC to provide resources to community members to better navigate the appeals process;
•   requiring detailed planning justification to prevent unsubstantiated appeals and help agencies like TRCA scope their involvement;
•   extending timelines for municipalities to make decisions on complex planning applications to reduce the number of appeals for non-decisions;
•   retaining mediation as an option while requiring case management to facilitate settlement and reduce the length and cost of hearings;
•   placing limits on appeals on matters of provincial interest; and,
•   expanding the scope for dismissal of an appeal without a hearing if an application differs substantially from the one on which council based its decision.

We acknowledge that other TRCA comments may eventually be addressed through future Ministerial regulations enabled by Bill 139, such as; 
•   provisions for transitional matters (i.e. to apply current provincial planning rules to land use applications submitted prior to 2007);
•   clarifying LPAT roles and procedures; and,
•   prescribing rules for multi-member panels and their composition (i.e. to increase the breadth of experience and consistency of decision making).

TRCA staff would like to express our interest and desire to participate in the initial formulation of any such regulations.

TRCA Key Recommendations:
Although Bill 139 would address many of TRCA’s former comments, we wish to highlight the following key recommendations that are of particular importance from our jurisdictional perspective and experiences at the OMB. We believe that, if incorporated, these recommendations would further strengthen the Province’s municipal planning and appeals process. TRCA’s detailed comments, which substantiate these key recommendations, are provided in the attached report, as approved at TRCA’s Executive Committee Meeting # 06/17, held on Friday, August 11, 2017.

•   TRCA staff recommend that the Planning Act be amended to require that municipalities consult conservation authorities during the municipal pre-consultation process prior to an application being deemed “complete” and an appeal to the LPAT can ultimately be made.
•   TRCA staff recommend that the Planning Act and the LPAT Act be amended to require that conservation authorities be circulated on notices of appeal to the LPAT where their areas of interest are affected.
•   TRCA staff recommend that conservation authorities be acknowledged as prescribed commenting agencies under the Local Planning Appeal Tribunal Act.
•   Where an initial appeal of a non-decision of an OP or ZBL is made, TRCA staff recommend the Province consider directing the Tribunal to determine whether Council had just cause in not making a decision within the statutory timeframe.
•   TRCA staff suggest that Bill 139 be revised to clarify that the newly proposed conformity/consistency tests (both as the basis for an appeal and for the LPAT’s final decision) will apply not only to OPs and ZBLs, but also to other associated Planning Act applications.
•   TRCA staff recommend that the Province establish guidance materials outlining how the conformity/consistency tests are to be operationalized, both as the basis of an appeal, and for a Tribunal’s decision. In doing so, the Province should clarify their involvement and potential attendance in a hearing to represent the provincial interest.
•   TRCA staff request that the Province create a minimum standard of qualifications and training for new Tribunal members.
•   TRCA staff would like to reiterate a previous recommendation to clarify and strengthen the role of technical guidance on provincial interests in LPAT decision-making, specifically those related to the natural heritage and hazard policies of the PPS.
•   TRCA staff recommend that the Minister utilize the powers bestowed through Bill 139 to remove “grandfathering” of all Planning Act applications submitted before 2007 (or earlier) and that they be subject to updated provincial policies and plans, which apply at the time of a decision or approval.
•   We recommend that the Province undertake public consultation on any and all regulations proposed pursuant to Bill 139 to provide agencies like TRCA with the opportunity to contribute on the basis of our experience.

Thank you once again for the opportunity to provide comments on this important initiative. Ontario’s municipal planning appeals system plays a vital role in balancing the position of councils, ratepayer groups, developers and agencies, while having regard to municipal decisions. TRCA supports efforts to improve and modernize the OMB process to resolve appeals effectively and efficiently while maintaining a decision making process that is fair and well-informed. Should you have any questions, require clarification, or would like to meet to discuss any of the comments, please contact the undersigned.

Sincerely,

Carolyn Woodland, OALA, FCSLA, MCIP, RPP
Senior Director, Planning, Greenspace and Communications
Toronto and Region Conservation Authority

Enclosure
___________________________________

Section II – Items for Executive Action
TO: Chair and Members of the Executive Committee
Meeting #06/17, Friday, August 11, 2017 FROM: Carolyn Woodland, Senior Director, Planning, Greenspace and Communications
RE: Ontario Municipal Board Reform (Bill 139)
Draft Toronto and Region Conservation Authority (TRCA) Comments
____________________________________________________________________________
KEY ISSUE
TRCA’s draft response to the Province as it relates to the proposed changes to the Planning Act and Ontario Municipal Board Act, as part of Bill 139 – the Building Better Communities and Conserving Watersheds Act, 2017 (EBR Notice #013-0590).

RECOMMENDATION

WHEREAS the Province of Ontario has posted the proposed amendments to the Planning Act and Ontario Municipal Board Act as part of Bill 139, the Building Better Communities and Conserving Watersheds Act for public comment on the Environmental Bill of Rights (EBR);

AND WHEREAS Toronto and Region Conservation Authority (TRCA) has roles and responsibilities affecting planning matters that come before the Ontario Municipal Board (OMB), through which TRCA staff regularly participate;

THEREFORE LET IT BE RESOLVED THAT the staff report on TRCA’s draft comments to the Province through EBR posting #013-0590 be endorsed;

AND FURTHER THAT this report be circulated to TRCA’s municipal partners, neighbouring conservation authorities and Conservation Ontario for their information.

BACKGROUND

Since 2004, the Ontario government has implemented a series of land use planning reforms aimed at making the provincial planning system more inclusive and transparent, including the Strong Communities (Planning Amendment) Act, 2004, the Planning and Conservation Land Statute Law Amendment Act, 2006, and the Smart Growth for Our Communities Act, 2015 (EBR# 012-3651). These efforts altered the procedures and operations of the OMB by placing limits on the number of matters that can be appealed and giving municipalities a stronger, more independent voice in local land use decisions. Despite these changes, the Province continued to hear concerns from municipalities, stakeholders and the public about the role of the OMB in the land use planning system.

In June 2016, the Ontario government commenced its review of the scope and effectiveness of the OMB. In October 2016, the Province released a Consultation Document to provide the public with an opportunity to comment on changes being considered to improve Ontario’s land use planning appeal system in response to the changing needs of its communities (EBR #012-7196). A series of questions centering on the following five themes were proposed:

1) OMB jurisdiction and powers;
2) Citizen participation and local perspective;
3) Clear and predictable decision-making;
4) Modern procedures and faster decisions; and,
5) Alternative dispute resolution and fewer hearings.

On December 19, 2016, TRCA staff provided comments in response to these questions and offered a number of recommendations staff deemed to be of particular importance from TRCA’s jurisdictional perspective and experiences at the OMB, as approved by Resolution #A231/16 at Authority Meeting # 11/16. These key recommendations included:

• Appeals based on non-decisions are often tied to applications that are deemed “complete” yet lack the supporting information required for agencies like TRCA to make an adequate assessment of the application;
• Appeal rights should be restricted for land use matters that protect provincial interests and prohibit development related to natural heritage, source water and natural hazards in the Provincial Policy Statement (PPS);
• Given the unique provincial ministerial approval process, appeal rights should be restricted for official plan (OP) or OP amendments (OPAs) associated with Special Policy Areas (SPAs) under Section 3.1.4 (a) of the PPS;
• The technical criteria developed to provide guidance on provincial interests at OMB hearings, specifically those related to the natural heritage and natural hazard policies of the PPS, should be given more weight and status;
• Updated provincial planning rules should apply at the time of decision for applications submitted before 2007;
• Clarification is needed as to what constitutes information as “significant” when new “significant information” is introduced at an OMB hearing and sent back to council for reconsideration;
• The number of appeals should be limited, appeal timelines should be shortened, and broad appeals should be substantiated by a sound planning rationale prior to proceeding;
• When new technical work in support of an application is introduced during a hearing, the hearing should be adjourned and the application should continue to be processed to a decision in the municipal planning realm;
• Multi-member panels are needed to increase the consistency of decision-making and provide a more holistic and balanced perspective of the various public interests relevant during appeals, particularly for complex cases;
• Where applicable, OMB members may benefit from professional development/training on emerging or complex issues such as environmental management and/or issues related to the Conservation Authorities Act.

On May 30, 2017, the Province introduced Bill 139, the Building Better Communities and Conserving Watersheds Act, 2017. Bill 139 is an “omnibus bill” that proposes a series of transformative legislative changes that, if passed, would overhaul Ontario’s land use planning system by changing the manner in which local planning decisions are made. The changes proposed through Bill 139 are included in the following five Schedules:

Schedule 1: Enacting the Local Planning Appeal Tribunal Act, 2017
Schedule 2: Enacting the Local Planning Appeal Support Centre Act, 2017
Schedule 3: Amendments to the Planning Act, the City of Toronto Act, and the Ontario Planning and Development Act
Schedule 4: Amendments to the Conservation Authorities Act
Schedule 5: Amendments to various Acts consequential to their enactment

Bill 139 will have to pass through two more readings in the legislature before being enacted. This could occur during the next season of legislature (commencing September 11, 2017). During this time, it will be debated and could be referred to a Standing Committee for a “clause by clause” review. Many of the proposed amendments are enabling only, meaning that they would not come into force until a later date through regulations made by the Lieutenant Governor in Council (LGIC) or the Minister. Bill 139 also proposes significant changes to the Conservation Authorities Act (Schedule 4), however, TRCA staff have, and will continue to report on these changes independently from those specific to the OMB reform (Schedules 1, 2, 3, and 5).

KEY LEGISLATIVE CHANGES PROPOSED THROUGH BILL 139 (Related to the OMB only):

The following synopsis outlines significant changes that would result from Bill 139, as they relate to TRCA’s interests, roles and responsibilities. Additional recommendations to further these proposed changes are outlined in the “Analysis and Key Recommendations” section of this staff report.

Replacing the OMB with a Local Planning Appeal Tribunal (“LPAT”)

The OMB would be replaced with the LPAT, a tribunal mandated to give greater weight to the decisions of local communities, while ensuring that development and growth occur in a way that is good for Ontario and its future.

Establishing the Local Planning Appeals Support Centre (“LPASC”)

Planning appeals would be more publically accessible through the creation of the LPASC, an agency modeled after the Human Rights Legal Support Centre. The LPASC would address TRCA’s call for enhanced support for the general public in the appeals process as it would provide free, general legal and planning advice and representation to eligible citizens who may want to participate in local planning appeals. The LPASC would be independent from, but still accountable to, the Ontario government. Eligibility criteria for the LPASC would be prescribed through a future regulation.

New Appeals Process / Elimination of de novo Hearings

An appeal of a municipally-adopted/approved OP or Zoning By-law (ZBL) amendment would now have to describe, in writing, why a decision by Council (or failure to make a decision) fails one of the following “conformity/consistency tests”:

(i) it is inconsistent with a provincial policy statement;
(ii) it fails to conform with or conflicts with a provincial plan; and,
(iii) in the case of a lower-tier OP, it fails to conform with the OP of the applicable upper-tier municipality.

An appeal for a refusal of a privately-initiated OP/ZBL amendment would need to explain why existing policies/regulations of an OP/ZBL fail one of the above conformity/consistency tests, while also demonstrating how the proposed OP or ZBL amendment would satisfy the test in its entirety.

If the LPAT deems that an appeal does not adequately meet the requirements of the conformity/consistency tests, or if a submission is missing any other essential information, the LPAT must dismiss the appeal without a hearing.

The OMB operates with a considerable level of discretion regarding its ability to hear evidence and overturn a municipal decision if, in the Board’s opinion, Council did not make an “optimal” planning decision based on the principles of “good planning”. The Board also has the authority to conduct hearings on a “de novo” basis, meaning that OMB decisions must have regard for decisions by Council (and any information Council considered) but the Board can make a decision independent from and without reference to them. Through Bill 139, this “standard of review” would be reformed such that the LPAT could only overturn Council’s decision if the LPAT deemed it to have failed any one of the above noted conformity/consistency tests, and after Council has been given the opportunity to make a new decision.

If the LPAT was convinced that Council’s decision failed any of the conformity/consistency tests, all or part of the decision would be returned to the municipality with justification as to why a new decision is required. The municipality would then have 90 days to reconsider the application and make a new decision that rectifies the deficiencies identified by the LPAT. If the LPAT receives a second appeal and the LPAT still finds that the new municipal decision failed to meet the conformity/consistency test, then the LPAT would have the powers to substitute its own decision. A diagram from the Province’s website depicting the proposed LPAT hearing process can be found in “Attachment 1” to this report.

As further outlined below, to a certain extent, the LPAT would address many of TRCA’s previous comments concerning limiting the authority of the OMB, restricting appeal rights, reducing the number of appeals and their timelines, and requiring stronger criteria for appeals based on sound planning rationale. Despite these improvements, however, TRCA staff note that, appeals based on a non-decision by Council would not be subject to the new conformity/consistency tests. In these circumstances, the LPAT would retain the traditional approval powers of the OMB (i.e. to approve, modify, or refuse an application). Moreover, outside of OPs, ZBLs and plans of subdivisions (non-decisions), the modified appeals process would not apply to other Planning Act applications (e.g. Site Plan, Consent, etc.). For appeals of subdivision applications, however, the LPAT would now be required to refer any information and material introduced at a hearing back to the municipality for reconsideration, where at present the OMB has discretionary powers to determine whether new information should be sent back.

The Minister of Municipal Affairs would be afforded the authority to make appeals to the LPAT and could advise if an OP or ZBL appeal would or could adversely affect provincial interest. If the Minister provided this notice, the LPAT would retain the authority to make a decision but the new powers of appeal afforded to the LPAT under the new model would not apply, and any decision made would not be final until confirmed by the LGIC.

Expanded Control of Hearing Procedures

Mandatory Case Management: An important procedural change proposed is the requirement for mandatory case conferences prior to a hearing (for appeals of OPs, ZBLs, and subdivisions). While this would be congruent with current OMB practice regarding pre-hearing conferences and encouraging mediation, mandatory case conferences would enable opportunities for settlement and mediation early on in the LPAT process. This could necessitate increased staff time and resources during the onset of a hearing, but may limit the overall cost and length associated with TRCA’s involvement by first identifying and narrowing the scope of issues, an important concern TRCA staff raised previously.

Oral Hearings: OMB appeals are currently conducted “orally”, whereby parties may call witnesses to provide evidence orally (unless otherwise requested by the parties). This evidence can then be tested through cross-examination, argument, and the submission of additional materials. Through Bill 139, however, oral hearings would no longer be “as of right”. In the event that an oral hearing is permitted by the Tribunal, no party or person could adduce evidence or call or examine witnesses. Only a party or person identified at the request of the LPAT could make an oral submission to be examined by the Tribunal (which may be time limited by a regulation not yet released). At any stage in a proceeding, the LPAT would be empowered to “examine”– i.e. examine a party to the proceeding; examine a person other than a party who makes a submission; require a party/person to the proceeding to produce evidence for examination; or, require a party to produce a witness for examination.

Rules and Procedures: The LPAT would be afforded the same general rule-making abilities regarding hearing practice and procedure as is currently provided under the OMB. However, the LPAT would have the ability to adopt alternative approaches to traditional adjudicative procedures and the authority to appoint a person from among the parties to be a class representative where parties have a common interest. That being said, Bill 139 proposes to provide the Minister with the authority to make regulations, which could change the manner in which appeals are conducted, including:

a) Setting out procedures governing appeal proceedings, rules regarding the conduct and format of hearings, and practices regarding the admission of evidence and the format of decisions;
b) Providing for and governing the composition of multi-member panels to hear proceedings before the LPAT; and,
c) Prescribing timelines to proceedings on Planning Act appeals.

Extended Timelines for Decision Making

Bill 139 would extend the time municipalities have to make decisions (on OPs and ZBLs) by 30 days (210 days and 150 days, respectively). For decisions involving both OPAs and ZBLs, the timeline would extend to 210 days. The amount of time a municipality would be provided to make a decision on all other Planning Act applications would remain unchanged.

Limiting the Scope of Appeals / Removing Appeal Rights for Certain Planning Act Applications

Bill 139 would limit or remove appeal rights for a range of planning decisions previously appealable to the OMB, including: new interim control by-laws, OP policies and by-laws pertaining to Major Transit Station Areas (which municipalities would be allowed to designate in OPs) and two years for new Secondary Plans. In addition to limiting the grounds on which appeals can be made (for OPs and ZBLs, inconsistency or non-conformity with a provincial policy or plan or upper-tier OP), Bill 139 would also prohibit appeals of decisions relating to OPs where the Minister is the approval authority. This would appear to address TRCA staff’s previous comment that the Planning Act be amended such that appeals to SPAs are added to the list of specified provincial matters on which appeals are to be disallowed, where a comprehensive review of an SPA has been undertaken and received ministerial approval. In addition, it is our understanding that appeals of decisions relating to OP amendments to conform with the source protection requirements of the Clean Water Act and its regulations would also be prohibited. TRCA staff will be requesting confirmation of both interpretations.

Transition

Bill 139 charges the Minister with preparing regulations at a future date to address how matters will be resolved that were commenced before the date the new legislation takes effect. TRCA staff will monitor the release of any such regulation and report back, as needed.

Other Planning Act Changes

Bill 139 proposes to expand the list of “provincial plans” and “policy statements” currently defined and described in the Planning Act. Policy statements would now also include those issued under the Metrolinx Act, Resource Recovery and Circular Economy Act, and others which may require Ministerial approval. Provincial plans would now also include policies referred to in the Lake Simcoe Protection Act, Great Lakes Protection Act and Clean Water Act.

The scope of Local Appeal Bodies (LABs) would be expanded to include site plan control, in addition to minor variances and consents. It remains to be seen whether appeals of complex site plans (not associated with OP, ZBL, and subdivision applications) would still be heard at the LPAT. The Province has only indicated, in the OMB Consultation Document, that this would allow LABs to hear disputes on individual properties relating to, for example, landscaping, driveways or lighting. Currently, Toronto is the only municipality within TRCA’s jurisdiction to have a LAB.

Building on the climate change policies introduced in the recently amended Growth Plan for the Greater Golden Horseshoe, proposed changes to the Planning Act through Bill 139 would require OPs to contain policies that identify goals, objectives and actions for climate change adaptation and the mitigation of greenhouse gas emissions. This appears to align with changes to the Conservation Authorities Act proposed through Bill 139 that enable the creation of regulations relating to the role of CAs in climate change mitigation and adaptation, including a regulation pertaining to the review of planning documents for consistency with climate change-related policies in the PPS. TRCA has long played a critical role in addressing climate change risks and impacts of growth and urbanization in the Toronto region. As TRCA continues to advance expertise in this area, staff are strategically positioned to aid municipalities in the development of OP climate change policies.

Analysis and Key Recommendations

TRCA staff generally support the legislative changes proposed through Bill 139 and note that many of TRCA’s previous comments were addressed to varying degrees, including: creating the LPASC to provide resources to community members to better navigate the appeals process; requiring detailed planning justification to prevent unsubstantiated appeals and help agencies like TRCA scope their involvement; extending timelines for municipalities to make decisions on complex planning applications to reduce the number of appeals for non-decisions; retaining mediation as an option while requiring case management to facilitate settlement and reduce the length and cost of hearings; placing limits on appeals on matters of provincial interest; and expanding the scope for dismissal of an appeal without a hearing if an application differs substantially from the one on which council based its decision.

Many of TRCA’s previous comments may eventually be addressed through future Ministerial regulations enabled by Bill 139. For instance, provisions for transitional matters (i.e. to apply current provincial planning rules to land use applications submitted prior to 2007), clarifying LPAT roles and procedures, and prescribing rules for multi-member panels and their composition (i.e. to increase the breadth of experience and consistency of decision making).

Although Bill 139 would address many of TRCA’s former comments, staff provide the following key recommendations that, if incorporated into Bill 139, would further strengthen the Province’s municipal planning and appeals process:

1. Enhancing the Role of Third Party Comments & Technical Review for LPAT Appeals

TRCA staff recommend that the Planning Act be amended to require that municipalities consult CAs during the municipal pre-consultation process prior to an application being deemed “complete” and an appeal to the LPAT can ultimately be made. While language exists in municipal OPs/ZBLs suggesting that other agencies may be consulted, TRCA staff are not always advised of municipal pre-consultation meetings and do not have the ability to provide input into a municipality’s determination that an application is “complete”. As a result, technical work that would be required to make an informed decision is often absent or incomplete when an application is accepted, resulting in additional time spent requesting this work during the statutory plan review period. In TRCA staff’s experience, this delay often results in the expiration of the statutory timeframe and an appeal being filed based on the municipality’s failure to make a decision, forcing TRCA staff into potentially avoidable appeal hearings without sufficient opportunity to review technical information. Requiring the consultation of CAs in the determination of “complete” applications would streamline the plan review process and limit the number of appeals for non-decision in such cases.

2. Requiring Circulation to Conservation Authorities on Notices of Appeal

TRCA staff recommend that the Planning Act and the LPAT Act be amended to require that CAs be circulated on notices of appeal to the LPAT where their areas of interest are affected. In current practice, TRCA is often left out of circulations of notices of appeal by municipalities, including background materials submitted with appeal packages. In these cases, TRCA is pulled into a hearing process with little time to adequately prepare. Therefore, the Planning Act and the LPAT Act should be further amended to ensure that all prescribed agencies (including CAs) are copied on all notices of appeal that affect their areas of interest and to ensure they can attend mandatory case management conferences.

3. Conservation Authorities as Prescribed Agencies

The status of a CA as a commenting agency is acknowledged in the supporting regulations of the Planning Act. CAs have been delegated the responsibility to represent the provincial interest on natural hazards encompassed by Section 3.1 of the PPS as outlined in the Conservation Ontario/Ministry of Natural Resources and Forestry/Ministry of Municipal Affairs Memorandum of Understanding (MOU) on CA delegated responsibilities. In 2010, the Province approved the ‘Policies and Procedures for Conservation Authority Plan Review and Permitting Activities’ which provides clarity about the roles and responsibilities of CAs in the planning and permitting process. In keeping with the Provincial MOU and policies and procedures, TRCA provides planning and environmental advisory services to municipalities, implemented through MOUs and service agreements. In this respect, TRCA is essentially acting as a technical advisor to municipalities. These agreements cover TRCA’s areas of technical expertise such as water management, natural hazards and natural heritage. CAs also regulate development under their permitting responsibilities under Section 28 of the Conservation Authorities Act.

The recent release of ‘Conserving our Future: A Modernized Conservation Authorities Act’, in support of the proposed changes to the Conservation Authorities Act, as part of Schedule 4 of Bill 139, outlines the Province’s intent to recognize in regulations, the current and future roles of CAs in the planning process to assist the Province in achieving consistency with the PPS, “including policies related to natural hazard policies and land use and development patterns that promote climate change adaptation and mitigation.” Therefore, TRCA staff recommend that CAs be acknowledged as prescribed commenting agencies under the Local Planning Appeal Tribunal Act.

4. Tightening the Basis for Appeal of Non-Decisions

TRCA staff welcome the extended time afforded to municipalities to make a decision on OPs and ZBLs. Staff also generally support the proposed conformity/consistency tests outlining the basis for appeal where Council has made a decision. However, as noted above, for appeals based on failure to make a decision (a “non-decision”), the conformity/consistency test would not be required and the Tribunal would be afforded the same powers provided currently to the OMB. Where an initial appeal of a non-decision of an OP or ZBL is made, TRCA staff recommend the Province consider directing the Tribunal to determine whether Council had just cause in not making a decision within the statutory timeframe. Where appropriate, the LPAT should return the matter to Council with recommendations and prescribe a reasonable timeframe and/or information requirements necessary for a decision. If a decision could be made within the extended timeframe, and an appeal was subsequently made in response to this decision, the matter would be returned to council for review based on the conformity/consistency test. If Council could not make a decision within the extended time period, the matter would be returned to the Tribunal, where the existing powers and “standard of review” would apply (i.e. to approve, modify, or refuse an application based on the principle of “optimal” planning).

5. Clarifying Appeals Involving Multiple Planning Act Applications

Appeals under the Planning Act often include a combination of associated applications to facilitate their implementation. For instance, OPs and ZBLs are typically reviewed concurrently with related subdivision and/or site plan applications. However, Bill 139 does not specify whether subdivisions, site plans and Committee of Adjustment applications would be subject to the same conformity/consistency appeal test as OPs/ZBLs, even if they collectively form part of the same development proposal. TRCA staff suggest that Bill 139 be revised to clarify that the newly proposed conformity/consistency tests (both as the basis for an appeal and for the LPAT’s final decision) will apply not only to OPs and ZBLs, but also to other associated Planning Act applications.

6. Coordination with Provincial Policy & Legislation

It is unclear whether the Tribunal will seek consistency with all of the provincial plans/policies defined and described in the Planning Act as the basis of the conformity/consistency test for an appeal (or a final decision), or whether some will be prioritized over others. In TRCA’s experience, appeals can be heard based on compliance with a single section of the PPS or Provincial Plan (e.g. intensification) without regard for other sections (e.g. section 3.1 of the PPS, regarding flood hazards). LPAT appeals (and Tribunal decisions) should be based on a consistent and defensible planning justification considered from a balanced and comprehensive assessment of the entire current provincial policy and legislative framework, as well as implementing municipal documents. TRCA staff recommend that the Province establish guidance materials outlining how the conformity/consistency tests are to be operationalized, both as the basis of an appeal, and for a Tribunal’s decision. In doing so, the Province should clarify their involvement and potential attendance in a hearing to represent the provincial interest. Additionally, it should be explained that the Planning Act must be read in conjunction with all other applicable land use policies, plans, regulations and/or standards (as amended from time to time) and specify where more specific plans or regulations take precedence, as per the Implementation section of the PPS (4.10, 4.11).

7. Qualifications and Training of Tribunal Members

Without adequate professional development on emerging or complex issues such as environmental management, Tribunal members may not have the appropriate knowledge and expertise to effectively manage hearings and issue decisions for the broad range of matters brought before the LPAT. This issue is of particular importance given that the majority of evidence used to inform Tribunal decisions would be in written format, fewer opportunities may exist, if at all, for experts to explain or critique technical studies produced in support of written submissions. TRCA staff request that the Province create a minimum standard of qualifications and training for new Tribunal members.

8. Role of Technical Guidance on Provincial Interests

While Bill 139 has introduced new tests for appeals of OPs and ZBLs based on provincial policies and plans, it remains silent on the role of technical criteria developed to provide guidance on provincial interests. In TRCA staff’s experience, opinions based on technical documents related to the natural heritage and hazard policies of the PPS (e.g. Natural Heritage Reference Manual and the Technical Guide for River and Stream Systems) are not given adequate weight during appeal hearings. TRCA staff are concerned that this trend could continue under the new LPAT model. Additionally, it may become increasingly difficult to reference, explain and expand upon technical documents, given that written evidence would predominantly be used to inform Tribunal decisions and cross-examination would no longer occur. Bill 139 states that the Province could clarify whether a matter under appeal would adversely affect provincial interest, but the extent of provincial involvement in doing so is yet to be determined and could rely on as-of-yet unpublished regulations.

TRCA’s concerns regarding the lack of weight given to technical criteria at hearings are compounded given that recent amendments to the four provincial land use plans have introduced progressive policies requiring environmental and planning criteria that will rely heavily on such materials. For example, municipalities, partnering with CAs, are now required to undertake watershed planning to ensure that growth occurs in an environmentally sustainable manner. The Province has indicated that guidance materials and supplementary information will be produced in support of these policies. In fact, TRCA is currently involved in the Province’s “Watershed Engagement Group” to help inform the development of a Watershed Planning Guidance document in support of carrying out these very policies. TRCA staff would like to reiterate a previous recommendation to clarify and strengthen the role of technical guidance on provincial interests in LPAT decision-making, specifically those related to the natural heritage and hazard policies of the PPS.

9. Applying Current Provincial Policies at the Time of Decision for Applications

Since 2007, the Planning Act has required that Planning Act decisions must be consistent with provincial policies and conform to provincial plans that are in place at the time of a decision, rather than when an application is made. The October, 2016, Provincial Consultation Document on changes being considered to the OMB sought feedback on whether this requirement should be amended. However, Bill 139 does not appear to have been changed to reflect this consideration. In TRCA’s experience, examples continue to arise of unbuilt subdivisions originally approved in the 1970s, ‘80s and ‘90s, proposing to be developed at the present time in a manner which does not meet the objectives of current provincial policies (e.g. natural hazards or significant environmental features such as wetlands). If development proposals have not been built since 2007 (at the latest), there is no need to perpetuate planning decisions based on outdated policies that have since been replaced following years, or even decades, of progressive advancements to Ontario’s land use planning and legislative framework. TRCA staff recommend that the Minister utilize the powers bestowed through Bill 139 to remove “grandfathering” of all Planning Act applications submitted before 2007 (or earlier) and that they be subject to updated provincial olicies and plans, which apply at the time of a decision or approval.

10. Future Ministerial Regulations

As noted above, Bill 139 enables the Minister to make regulations regarding: transitional matters that commenced before the new legislation comes into effect; rules for the composition and governance of multi-member LPAT panels; and, Tribunal practices and procedures - admission of evidence, and the conduct and format of hearings, and structure of decisions. To this effect, a number of the aforementioned recommendations could be addressed through the creation of future regulations and, as such, TRCA staff would like to express our interest and desire to participate in their initial formulation. We recommend that the Province undertake public consultation on any and all regulations proposed pursuant to Bill 139 to provide agencies like TRCA with the opportunity to contribute on the basis of our experience.

FINANCIAL DETAILS

TRCA staff are reviewing Bill 139 as part of existing budgets. No additional funding is required for this review.

DETAILS OF WORK TO BE DONE

• Incorporate feedback from the Executive meeting on August 11, 2017 into the submission to the EBR by the deadline of August 14, 2017;
• Attend any provincial training sessions on the proposed amendments and any associated guidance materials;
• Continue to work with TRCA’s municipal partners, Conservation Ontario and the Province in understanding the implications of the proposed amendments and timing of the pending regulations to the operation of TRCA programs and delivery of services;
• Coordinate internal consultations with senior management, planning and technical staff to assess the implications of the OMB reformation (ongoing).

Report prepared by: Jeff Thompson, extension 5386
Emails: jthompson@trca.on.ca
For information contact: Carolyn Woodland, extension 5214
Emails: cwoodland@trca.on.ca
Date: August 11, 2017
Attachments: 1

[Original Comment ID: 210748]