September 7th - 2006

Development in Ontario will get bogged down in legislation: panel

The new and proposed amendments to the Planning Act will make development in Ontario a complicated, expensive and time-intensive process, with the onus on the developer to make the process efficient and transparent.

The new and proposed amendments to the Planning Act will make development in Ontario a complicated, expensive and time-intensive process, with the onus on the developer to make the process efficient and transparent. That was one of the messages from a panel of planners, developers and lawyers at a session on the implications of new and proposed legislation at the Land Conference in Toronto in June.

The pending Bill 51 – Planning and Conservation Land Statute Law Amendment Act and recently enacted Bill 26 – Strong Communities (Planning Amendment Act) seek to increase municipal autonomy and authority in the planning process by increasing time lines for reviewing, limiting rights to appeal expansions to municipal boundaries, restricting rights to convert employment land to other uses, and requiring a comprehensive “front end” submission process, as well as other changes.

“The one thing we know is that it is not going to get simpler, cheaper or faster to develop land in Ontario because of this legislation,” said Andrew Madden, President, Diral Development Corporation. “As a developer what you will have to do is put together your consulting team and your lawyers right from the beginning. You are going to have to be very strategic.”

Panelists said that the legislation suggests that developers have been putting skimpy evidence before city councils, waiting the time limit and then presenting the full case to the Ontario Municipal Board (OMB), with municipalities not having seen much of the material. The Planning Act amendments, said Stephen Diamond, McCarthy Tetreault LLP, place a greater obligation on the industry to provide the detailed information from the beginning.

“There are two parts of the act that I think are important; one is that the act now says that a municipality can make it mandatory that there is a pre-consultation process…. The second part is that it says that the municipality can, by the official plan amendment, make requirements for what constitutes a complete application.” If all of the amendments are passed, said Diamond, it will mean “a lot of front end work that has to be done when you file an application. It likely will be more expensive, and more cumbersome, and all your reports – your traffic report, your planning reports, your architectural renderings, your soils and servicing reports – everything will likely have to be done from the day that you file your application.”

More municipal control
With Bill 51, municipalities would gain the ability to impose architectural control through the site plan process, a critical component to the application process, and these proposed changes cause some of the greatest concern.

The language in Bill 51 suggests that the matters relating to exterior design may include, without limitation, the character, scale, appearance and design features of the building and their sustainable design. “That’s a loaded gun of issues and I think the problem that I see is the political influence on this process. I think developers, architects, planners (can have) a reasonable and rational discussion (on these issues). When you begin to insert the political influence it is anybody’s guess how that will end up,” said Neil Rodgers, President, Urban Development Institute.

Madden added: “If sustainable development does not mean economical sustainability, then this site plan process may become a very dangerous one for all of us.”

With greater regard to the decisions of the municipalities, Bill 51 tries to reduce the role of the OMB in the planning process, if not eliminate it. The “no new evidence” rule essentially says that information or material that was not available at the municipal council may not be presented as evidence at the OMB unless it can be proved that it was not available at that time. Public bodies such as the municipality and conservation authorities, however, can present new evidence to the OMB, an unfair bias, the panel criticized, against the private sector.

More information about the legislation can be found at http://www.e-laws.gov.on.ca/.

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