Bill 185 Update - Amendments to the Planning Act and Development Charges Act
The Cutting Red Tape to Build More Homes Act, 2024 (“Bill 185”) received Royal Assent on June 6, 2024, bringing forward fundamental changes to the Planning Act and other key pieces of legislation.
A redline copy of the Planning Act, as amended by Bill 185, can be accessed here.
A redline copy of the Development Charges Act, as amended by Bill 185, can be accessed here.
We have summarized some of the key legislative changes to the Planning Act and the Development Charges Act below:
1. Planning Act
Limitation of Third-Party Appeal Rights
Amendments to subsections 17(24), 17(36) and 34(19) now limit appeals of municipally approved official plans, official plan amendments and zoning by-law amendments to specified persons, public bodies and the “registered owner” of any land to which the official plan, official plan amendment or zoning by-law amendment would apply, where they have made written or oral submissions to the council before the by-law was passed.
The definition of “public body” has been expanded to include hospitals. On July 1, 2024, a reference to a person or public body will no longer include an upper-tier municipality without planning responsibility as defined in Section 1.
The definition of “specified person” has been expanded to include NAV Canada, the owner or operator of an airport (subject to conditions), a licensee or permittee under the Aggregate Resources Act within 300 metres, holders of an Environmental Compliance Approval (subject to conditions), a person who has registered an activity on the Environmental Activity and Sector Registry (subject to conditions) and the owner of any such sites described above. Members of the public generally, including adjacent landowners and ratepayer groups, do not fall within the definition of specified person or public body and would therefore not be entitled to appeal a municipality’s approval of an official plan, official plan amendment or zoning by-law amendment.
Appeals by third-parties who do not fall within the amended definitions that were filed before June 6, 2024 are deemed to have been dismissed on that date, unless a hearing on the merits had been scheduled prior to April 10, 2024, or a notice of appeal was filed by a person or public body who falls within the amended definitions.
Third-party groups (e.g. neighbouring landowners, ratepayer groups and industry groups) may still seek party status to an appeal filed by a registered owner, specified person or public body as redefined above.
Restriction on Parking Minimums
New subsections 16(22) and (23) and 34(1.1) and (1.2) restrict official plans and zoning by-laws from imposing minimum vehicular parking requirements in Protected Major Transit Station Areas and other areas surrounding or including existing or planned higher-order transit that meet certain criteria, as well as any other areas prescribed by regulation. There is no distinction in the new subsections between the provisions of resident and visitor parking.
Existing official plan and zoning by-law requirements that contravene the new subsections are of no effect.
New subsections 16(24) and 34(1.3) restrict official plans and zoning by-laws from imposing minimum vehicular parking requirements for any other area prescribed by regulation where the proposed municipal parking standards exceed the minimum prescribed vehicular parking requirements. Where an official plan, zoning by-law or ministerial zoning order includes vehicular parking requirements that exceed those prescribed by regulation, the official plan, zoning by-law or ministerial zoning order is deemed to be amended to be consistent with the new subsections.
No Mandatory Pre-consultation Prior to Submitting Applications for OPA, ZBA, SPA and DPOS
The authority for a municipality to require that an applicant pre-consult with it prior to submitting applications for official plan amendments, zoning by-law amendments, site plan approval and draft plan of subdivision approval have been removed. Rather, the amendments provide that a municipality “shall permit” (but not require) an applicant to pre-consult with the municipality or planning board before submitting such applications.
We note that no revisions were made to a municipality’s authority to require additional information and material for an application to be deemed complete and in turn trigger the standing for an applicant to file a non-decision appeal.
Corresponding amendments have been made to the site plan approval provisions contained in Section 114 the City of Toronto Act.
No Request for OPAs to MTSA Policies with Exceptions
Section 22 has been amended to repeal and replace the previous subsection (2.1.3) and introduce a new exception in subsection (2.1.4). As modified, these subsections provide that where a protected major transit station area is identified in an official plan, no person or public body shall request an amendment in respect of any of the policies described in
subsections 16(15) or (16) in respect of the area.
However, a new exception has been introduced (2.1.4) that provides that the prohibition set out in (2.1.3) does not apply in respect of the policies described in clauses 16(15)(b) or 16(16)(b), which generally refer to policies that identify the authorized uses of land in the major transit station area and of buildings or structures on lands in the area.
Appeals of Settlement Boundary Expansions
Non-decisions and decisions to refuse applications for official plan amendments and zoning by-law amendments that propose to alter all or any part of a settlement area boundary to add land into the area may now be appealed by the applicant to the Ontario Land Tribunal as long as none of the land proposed to be added is part of the Greenbelt, within the meaning of the Greenbelt Act, 2005.
However, appeals of a refusal or failure to decide applications for official plan amendments and zoning by-law amendments that propose to implement “a new area of settlement” are still prohibited.
Repeal of Fee Refunds Subject to Transition Provisions
The fee refund provisions introduced under the More Homes for Everyone Act, 2022 (“Bill 109”), which required municipalities to refund application fees paid for applications for zoning by-law amendments and site plan approvals on an ascending scale, where a decision by the municipality had not been made at prescribed intervals of time, have been repealed.
Bill 185 introduces transition provisions which provide that the Bill 109 fee refund provisions will still apply to applications made before June 6, 2024. However, the transition provisions further state that where the fee refund provisions continue to apply, the municipality will be deemed to have made a decision on the application(s) on June 6, 2024, which will in turn crystallize the amount of the refund(s) that an applicant is entitled to receive.
Similar fee refund provisions contained in Section 114 of the City of Toronto Act in respect of applications for site plan approval have also been repealed and transition provisions similar to those in the Planning Act have been introduced.
Lapse of Approval Provisions (Use it or Lose It)
Site Plan Approval
New subsections 41(7.1), (7.2) and (7.3) provide that in approving plans and drawings under subsection 41(4), the authorized person “may” impose a lapsing provision to approved applications for site plan approval. This language suggests that the decision to impose a lapsing condition to site plan approval is discretionary, which differs from the amendments introduced for draft plan of subdivision approvals summarized below.
The approval “shall lapse” at the end of the expiration period, unless a building permit under Section 8 of the Building Code Act is issued to implement the site plan approval prior to the expiration of the time period.
The time period for the lapsing provision “shall not” be less than or exceed the time period prescribed by regulation. There is currently no time period prescribed by regulation.
Where a prescribed time period does not apply to a development, the time period shall “not be less than” 3 years. As drafted, this would appear to provide discretion to extend the lapsing period beyond 3 years where a prescribed time period does not apply to a development.
Corresponding amendments have been made to the site plan approval provisions contained in Section 114 the City of Toronto Act.
Subsection 41 (7.3) provides a that where an authorized person has approved plans and drawings under subsection 41(4) of the Planning Act prior to June 6, 2024, the authorized person may provide that the approval lapses in accordance with the provisions summarized above [subsections 41(7.1) and (7.2)], in which case the municipality shall notify the owner of the land of the change to the approval. This provision does not specify the date from which the lapsing provision will run (i.e. whether it runs from the date of the original approval or from the date of the change to the approval).
New subsections 70.1(1)(24.2) and (24.3) authorize the Minister to make regulations prescribing that (a) the lapsing provisions under subsections 41(7.1) and (7.2) do not apply to a development or one or more classes of developments, and (b) the applicable time periods for a particular development or different classes of development.
New subsection 70.1(1)(24.4) authorizes the Minister to prescribe, by regulation, a development or one or more classes of development to which the retroactive authority to change a preexisting site plan approval to contain an lapsing provision does not apply.
Draft Plan of Subdivision
Section 51 previously included a discretionary authority for a municipality to include a lapsing provision to the approval of a draft plan of subdivision. This discretionary authority has been amended to introduce a mandatory requirement that a municipality, where giving approval to a draft plan of subdivision, “shall provide” that the approval lapses at the expiration of a specified time period.
Where there is an appeal to the Ontario Land Tribunal in respect of an approval, the time period provided in the lapsing provision does not begin to run until (a) the day the Tribunal’s issues its decision in respect of the appeal or (b) from the date the Tribunal provides notice that all appeals have been withdrawn or the time for appealing has expired.
This new requirement may be subject to prescribed time periods applicable to the development, which have not yet been introduced by the Province. Where an approval “shall lapse'' at the expiration of the specified time period, the time period shall not be “less than” the period prescribed by regulation as may be applicable to the development, nor “exceed” the prescribed time period. If a prescribed time period does not apply to a development, then the lapsing period shall not be less than 3 years, which suggests that in the absence of a prescribed time period, the approval authority has the discretion to introduce a time period that exceeds 3 years.
New subsections 70.1(1)(26.1) and (26.2) provide that the Minister may prescribe that for a development or one or more classes of development (a) the lapsing provisions contained in subsections 51(32) and (32.1) do not apply; and (b) that an approval authority is not permitted to provide for the lapsing of an approval.
New subsection 70.1(1)(26.3) provides that the Minister may prescribe a specific time period that applies to a particular development or that different time periods apply to different classes of development.
Subsection 51(33.1) continues to include a provision that allows a municipality to extend the approval for a specified period of time, but no extension is permissible if the approval has already lapsed before the extension is given. The Planning Act also continues to allow a municipality to deem that an approval has not lapsed, provided that certain conditions are met.
Approvals for draft plans given on or before March 27, 1995 will now lapse on June 6, 2027, being the third anniversary of Bill 185 coming into force. The amendments provide very limited exceptions to this lapsing provision in the case of appeals filed in respect of a condition to approval where (a) there is an existing appeal filed prior to June 6, 2024 or (b) where an appeal is commenced between June 6, 2024 and June 6, 2027. In these cases, the approval will lapse on the third anniversary after the day that all appeals of the draft plan are withdrawn or the Tribunal has disposed of all of those appeals. Under the new subsection 70.1(1)(26.4), the Minister may prescribe a development or classes of developments to which this provision will not apply.
Repeal of Authority to Pass Resolution and Request a Minister’s Zoning Order
Bill 185 deleted in its entirety Section 34.1, which authorized a municipality to pass a resolution requesting that the Minister issue a zoning order in respect of certain lands. However, Bill 185 did not amend or repeal any of the Minister’s authorities under Section 47, which includes the general authority to issue zoning orders.
2. Development Charges Act
Repeal of Development Charge Phase-in
The mandatory phase-in provisions of development charges for the first four years that a development charge by-law is in force have been repealed. For development charge by-laws passed on or after January 1, 2022 but before November 28, 2022, new transition provisions provide that the phased rates will continue to apply to charges imposed on or after November 28, 2022 and before June 6, 2024. The phased rates will not apply to development charges imposed before November 28, 2022.
We note that transition provisions do not apply to development charge by-laws passed after November 28, 2022.
Municipalities have been given the authority to amend their development charge by-laws that were passed between November 28, 2022 and June 6, 2024 in order to increase the development charges to the amounts that could have been charged if the phase-in provisions had not been enacted. Municipalities have until December 6, 2024 to pass such amendments and those amendments are not appealable to the Ontario Land Tribunal.
Similar authority has been granted to municipalities to amend development charge by-laws passed between November 28, 2022 and June 6, 2024 to extend the date on which the development charge by-law will expire and to impose, where permitted, development charges to pay for the capital costs incurred to undertake a background study or studies in connection with the cost to acquire and improve land or to acquire, lease, construct or improve buildings, structures and facilities described in subsection 5(3). These amendments, if passed before December 6, 2024, cannot be appealed to the Ontario Land Tribunal.
“Frozen” Development Charge Rates
The time periods set out in subsection 26.2(5) for which a development charge rate is “frozen” or “locked-in” prior to the issuance of a building permit have been reduced from 2 years to 18 months. Under the transition provision, the 2 year time period continues to apply to developments where the applicable planning or development application “locking in” the development charge rate was approved before June 6, 2024.