We write as SORE Association…

We write as SORE Association, a federally incorporated not for profit corporation‎. SORE is focused on the wise management and use of cultural heritage assets in Niagara-on-the-Lake (NOTL). SORE represents hundreds of households and many hundreds of voters in NOTL.

We request that the Ministries of Municipal Affairs and Housing and of the Attorney-General consider the following submission and requests with respect to the proposed transitional provisions for the amendments to the Planning Act brought about by Bill 108, when proclaimed.

In a word, we believe the proposed transitional provisions are unduly narrow and restrictive, and contain as presented no constraints on appellants "regime shopping" to take advantage of whichever regime best suits them without regard to appropriate consideration of actual planning merit.

The result, we submit, would be:

1. unfair to municipalities and communities across the province who invested significant time and money in good faith in appeals brought under the current Planning Act; and

2. an abuse in the eyes of any reasonable ‎person of a transitional Regulation in such circumstances.

To elaborate, appellants already in the LPAT system when Bill 108 was introduced had accepted that they would participate in the current Planning Act regime. Appeals and accompanying appeal records were compiled by appellants based on the then current legislation. Responding municipalities were then required to do the same. In some cases, third parties including regulatory authorities and residents groups applied for and were given party status in such appeals. All of this typically required a significant investment of time and resources, financial and otherwise, by the various stakeholders.

Several matters were ready to be set down for a hearing but were adjourned solely to allow for a decision in the "Rail Deck" case.

The proposed transitional provisions do not properly take account of the process in effect at the time of the appeals or the time and resource considerations outlined above by proposing to narrowly focus only on whether LPAT has actually set a hearing date. As noted above, several matters were on the verge of that step and had only been adjourned to allow for guidance from the Divisional Court re: hearing procedures. This is manifestly unfair, we submit, to municipalities across the province who played the game by the rules, as well as to third parties such as other regulatory authorities and engaged stakeholders such as SORE, who did the same. ‎A fair and balanced approach instead would be to use the following test:

(i) have both the appellant and the responding municipality filed their appeal records with LPAT;
(ii) has LPAT held a Case Management Conference;
(iii) have any applications for party status been adjudicated by LPAT.

If the answer to all three of these tests is yes, appeals made under the then current Planning Act provisions should, we submit, be adjudicated under same. Any other approach simply "turns back the clock" as if the then current Planning Act process had not been in force for the last year and a half and is manifestly unfair to those who participated substantively in appeal processes thereunder in good faith.

We turn now to point 2 above. Appellants are now either attempting to have LPAT delay setting hearing dates on spurious grounds or simply withdrawing their appeals and "regime shopping".

This cannot reasonably be viewed, we submit, as anything other than an abuse of process should this be allowed to occur. Transitional provisions should provide certainty and allow for efficient processing of applications commenced under the regime which was in place at the time.

Part of the problem is the unduly narrow proposed approach ("has a hearing date been set") as outlined above. That can and should be fixed and we have suggested above a more appropriate approach.

Part of the problem is the absence of any provision to prevent the appellants, who would otherwise be subject to the the‎n in effect Planning Act provisions, from simply withdrawing their appeals in an effort to "regime shop". That is a clear abuse of process in the eyes of any reasonable person, we submit. The transitional regulations can and should be drafted to avoid such an end run around the legislative intent. In short, any appeal in place when Bill 108 was given Royal Assent should, if caught by the final transitional provisions, be required to proceed under the Planning Act in effect at the time the appeal was filed. The regulations should prevent an appellant in those circumstances from simply withdrawing an appeal and then bringing a fresh appeal on the same or a substantially similar proposal in order to avoid the impact of the transitional provisions.

We thank you for your consideration of these submissions.