January 19, 2018…

   January 19, 2018

  By email:

 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: Proposed new regulation under the Planning Act to prescribe transitional provisions for the Building Better Communities and Conserving Watersheds Act, 2017 (Bill 139) (EBR # 013-1788); and, amendments to matters included in existing regulations related to Bill 139 (EBR # 013-1790)

  Thank you for the opportunity to provide comments on the proposed regulatory changes under the Planning Act as part of Bill 139. It is our understanding that, once proclaimed into force by the Lieutenant Governor, the proposed regulatory changes would: provide certainty regarding the processing of and decision-making on planning matters; update tribunal references from Ontario Municipal Board (OMB) to Local Planning Appeal Tribunal (LPAT); require explanations of how planning proposals conform with local and provincial planning documents; clarify requirements for municipal notices; and, make various technical changes.

  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]), as 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 OMB while ensuring growth and development continues to occur in a sustainable way. We appreciate the Province’s continued effort to advance the progressive changes to the Planning Act to improve Ontario’s land use planning system and are pleased that many of our suggestions are reflected in the proposed legislative changes.

  GENERAL COMMENTARY ON THE PROPOSED REGULATORY CHANGES

  TRCA staff generally support the regulatory changes proposed to prescribe transitional provisions through Bill 139 and appreciate the chance to provide commentary for your consideration prior to their anticipated approval. Although the proposed regulations would appear to potentially address many of TRCA’s former comments, we note that the exact extent to which is currently unknown as the regulatory text has not yet been released. With this in mind, TRCA staff provide the following key recommendations that we believe, if incorporated, would further strengthen the Province’s municipal planning and appeals process.

  TRCA KEY RECOMMENDATIONS

  Proposed Transition Regulation Under the Planning Act for Bill 139 (EBR No. 013-1788)

  1.Proclaiming Bill 139 to be in force at the earliest possible date

  TRCA staff recognize the importance of including transition provisions to facilitate the conversion of the OMB to the LPAT. Since the introduction of Bill 139 in May of 2017, we have noticed a significant surge in the number of privately initiated appeals affecting TRCA interests. In light of the uncertainty surrounding the proposed transition regulations, we anticipate the increasing number of appeals to continue until the proclamation of Bill 139 brings the legislative changes into force. It is our understanding that the earliest proclamation can occur would be Spring 2018.If Bill 139 is not proclaimed until a later date (e.g. Summer 2018), the additional timeframe would facilitate the potential for a further large increase in appeals to be adjudicated through the OMB.

  TRCA staff are concerned that a cumulative rise in appeals would have financial implications for the Authority as the need for legal support would be exacerbated and staff efforts would be diverted toward OMB related matters. This influx of appeals could negatively impact the level of resources the Authority would be able to commit to OMB related matters. The difficulties of adjusting to such an increase and reallocation of efforts would also intensify as staff simultaneously acclimatized themselves to appeals under the LPAT format. Consequently, impacts to our ability to provide effective and timely service delivery could result. As elaborated below (comment 2), our concerns regarding an overwhelming  number of appeals would be further compounded if applications that were hastily submitted and deemed complete prior to Royal Assent lacked sufficient information to address TRCA concerns. TRCA staff recommend that the Province proclaim Bill 139 to be in force at the earliest possible date to reduce the potential number of allowable appeals to the OMB under the proposed transition provisions.

  Proposed Amendments to Existing Regulations Under the Planning Act relating to Bill 139 (EBR No. 013-1790)

  We understand that the proposed regulatory amendments would outline the minimum information necessary to submit a complete land use planning application; affirm the record of materials needed to submit to the LPAT (formerly OMB) upon appeal; and, revise requirements for the giving of notice, including decisions that would be un-appealable. While TRCA staff welcome the announcement of these changes and look forward to this clarification, without the full inclusion of regulatory text available to formally prescribe the specific details of these key changes, we respectfully reiterate the following recommendations we made previously in response to the proposal of Bill 139 (EBR #013-0590).

  2.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 Conservation Authorities (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 to participate in potentially avoidable appeal hearings without sufficient opportunity to review technical information. Requiring the consultation of CAs in the determination of “complete” applications would help to streamline the plan review process and limit the number of appeals for non-decision in such cases.

  3.Requiring Circulation to Conservation Authorities on Notices of Appeal TRCA

  TRCA staff recommend that the Planning Act (and 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. 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.

  4.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).

  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

[Original Comment ID: 212096]