Please find attached, as a…

Please find attached, as a PDF, the comments of Environmental Defence in relation to the above-noted matter, which is posted as ERO No. 019-2811 and pertains to the implementation of amendments to the Planning Act, by way Schedule 17 of Bill 197.

As a failsafe, the contents of the pdf, which is the main submission, are duplicated below in text only.

The power to issue Minister’s Zoning Orders should be significantly restricted

To begin, Environmental Defence has had the opportunity to review the comments of the
Canadian Environmental Law Association (CELA), and Ontario Nature and it endorses and
adopts them in their entirety. Without limiting the generality of the foregoing, we wish to draw
attention to their view that the Ministry has, since 2019, been using Minister’s Zoning Orders to
such an excessive degree, and in such inappropriate circumstances, as to seriously undermine
the protection of agricultural lands, hazard lands and significant natural heritage. We agree,
also, that:

● The Planning Act should be amended to permit Minister’s Zoning Orders only in
unorganized territories or circumstances where there is an extraordinary and emergent
provincial interest. Such an interest should, in the view of EDC, go beyond a
generalized desire to create economic stimulus or market housing supply.
● All Minister’s Zoning Orders should conform to, or be consistent with the official plans,
provincial plans, provincial policies (including the Provincial Policy Statement, 2020) and
other such instruments, applicable to the relevant geographic area, and should,
notwithstanding their framing as regulations, be subject to binding Local Planning Appeal
Tribunal appeals on that basis. In Environmental Defence’s further view, the Planning
Act should be amended so as to require that any Minister’s Zoning Order be
accompanied by the Minister’s written reasons for determining that it complies with s. 24,
s. 2, s. 3 of the Planning Act.
● Minister’s Zoning Orders should not be exempt from the Environmental Bill of Rights.
Public consultations and consultations with all relevant indigenous nations should be
required for MZOs, including consultation under Part II amendment or revocation of an
MZO.
● The Conservation Authorities Act should be amended so that Minister’s Zoning Orders
do not alter either the authority of conservation authorities to refuse, or impose
conditions on, permits for the relevant development, or the appeal route for such
conditions or refusals.

Environmental Defence shares the view of the Canadian Environmental Law Association and
Ontario Nature that the absence of appropriate consultation as per s. 15(1) of the Environmental
Bill of Rights is itself sufficient to warrant a full repeal of Schedule 17 of Bill 197. A retrospective
consultation cannot cure this failure, so any provisions the government wishes to proceed with
should be introduced, with consultations, as stand-alone legislation.

The Minister should not be empowered to exempt properties from Site Plan control
Separately, Environmental Defence has substantive concerns regarding the content of
Schedule 17 of Bill 197. These pertain, for the most part, to provisions which amend the
Planning Act (ss. 47 (4.3) - 47 (4.12)) to empower the Minister to strip municipal governments of
site plan control where a Minister’s Zoning Order is issued. In our view, municipal site plan
control is an essential tool for environmental protection, and the Minister should not have the
power to override or remove it. These provisions should not have been introduced, and ought
now to be repealed.

The purpose of the Site Plan Control mechanism is to address sites whose context and
characteristics are such that the social, logistical and environmental consequences of
developing them hinge upon aspects of the development that are fine grained, complex or
otherwise unsuited to being dealt with through the ordinary zoning review process.

● In some locations, the substantial environmental impacts of such factors (e.g., placement
of proposed buildings and earthworks within a development site, the selection and
placement of trees, ground covers, and paving) are quite direct. For example, many
municipalities have specific municipal zoning designations, and corresponding site plan
control bylaws, for land within or closely linked with the Oak Ridges Moraine. Such
bylaws allow the relevant municipality to provide the more detailed examination and
control that is required to ensure each development proceeds in a way that does not
harm source waters or other values. Schedule 17 of Bill 197 prevents this essential
work from happening at all when the Minister issues an MZO with site plan control. This
outcome will arise because the Ministry of Municipal Affairs and Housing simply does
not have the site-specific knowledge and expertise to do this work prior to the issuance
of a Minister’s Zoning Order, and the MZO process does not mandate the incorporation
of the relevant municipality’s knowledge and expertise into the Minister’s decision.

● In more populated locations, site plan control is essential to minimizing long-term and
indirect environmental harms, and to maximizing indirect environmental benefits
associated with urban development. For example, in cities, and in the vicinity of
suburban transit stations, site plan control is essential to ensure that the organization of
buildings on a development site, and the situation of their entrances and internal
passageways, facilitates, rather than obstructs active transportation. The absence of
appropriate site planning - which incorporates public consultation and is coordinated with
larger plans for circulation - can significantly impede access to mass transit stations,
reducing transit modal share and thus squandering major infrastructure investments and
potential carbon emissions reductions. Likewise, preventing public input and municipal
control over the massing of buildings in dense or otherwise strategic locations is likely to
result in public spaces and streets that are inhospitable for pedestrians, and thus to drive
up automobile modal share.

The problems and dangers created by removing municipal governments' site plan control are
not remedied by empowering the Minister of Municipal Affairs and Housing to impose an
“agreement” between a landowner and the relevant municipalities with respect to the same
subject areas. This is because the Ministry and Ministry staff will not have a municipality’s
familiarity with either the physical and long term planning context of a development site, and
because the MZO process itself does not prescribe that such municipal input (or public
consultation processes) be factored into the decision.

“Affordable Housing” Should Not Serve as a Trojan Horse for Minister’s Zoning Orders

Secondarily, Environmental Defence has concerns regarding s. 47(4.3)(c) of the amended
Planning Act. While we approve of requiring, for any development that is approved by way of
Minister’s Zoning Order, that a substantial percentage of the new units created be affordable,
we are concerned that relatively minor contributions to the supply of affordable housing will be
used as a pretext for broader Minister’s Zoning Orders that should not be issued at all. For at
least two reasons, this concern is not merely speculative. Firstly, while municipalities are
empowered to set their own, more stringent definitions of “affordable housing”, the provincial
definition, set out in the 2014 Provincial Policy Statement is so lax that it allows the term to be
applied to units which are neither genuinely below the range of “market” rents, nor “affordable”
to households receiving less than the median income. Second, since the arrival of the COVID-
19 pandemic in Ontario, the government has consistently seemed to rely on elements with a
mere thematic connection to COVID-19 (e.g., retirement homes) in precisely that way, to “sugar-
coat” much larger developments which consume land of ecological or agricultural value and
violate the principles of good planning.

Rather than expanding the scope of Minister’s Zoning Orders, we would advise that the
government introduce legislation to substantially limit the circumstances in which they are
permissible, and in particular to prohibit the issuance of MZOs for land that includes significant
wetlands or other features of ecological or agricultural significance.

Philip Pothen, JD, M.L.A.,Ontario Environment Program Manager,
Environmental Defence