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Planning and environmental issues

Planning

Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?

The provinces and territories have generally delegated responsibility for land use planning and zoning to municipalities under enabling planning act legislation promulgated by their respective legislatures, and land use within such municipalities is primarily governed by official plans and zoning by-laws made by the municipalities.

What are the eligibility, procedural and documentary requirements to obtain planning permission?

Each province and territory, and each municipality with delegate planning and zoning authority, has different eligibility, procedural and documentary requirements for different kinds of planning permission, including development applications, building permits, bylaw amendments and subdivision consents. The planning permission process and requirements can range from simply submitting an application and paying certain fees to meeting with municipal committees, submitting plans and applications for public consultation and seeking the approval of city council.

Can planning decisions be appealed? If so, what is the appeal procedure?

Local planning decisions can generally be appealed to provincial and territorial tribunals where they exist. In jurisdictions that do not have appeal tribunals for planning and zoning matters (eg, British Columbia, the Northwest Territories and Nunavut), local counsel decisions can in some instances be judicially reviewed not on the merits but based on a lack of jurisdiction, procedural fairness or natural justice. The superior courts of each province and territory also generally retain jurisdiction to hear local planning decision appeals.

What are the consequences of failure to comply with planning decisions or regulations?

The consequences of failure to comply with planning decisions or regulations can range from the issuance of municipal violation notices and compliance orders that can be directly enforced by self-help remedies in some jurisdictions to prosecution or injunctive relief in provincial or territorial courts that can result in fines and imprisonment.

What regime governs the protection and development of historic and cultural buildings?

Federal, provincial and municipal regulations govern the protection and development of historic and cultural buildings in Canada. At the federal level, for example, the Heritage Railway Stations Protection Act and Act to Protect Heritage Lighthouses protect railway stations and lighthouses, respectively. Each province and territory also has legislation for the conservation, protection and preservation of heritage properties. Some municipalities include heritage protection measures in their land use planning policies; some pass bylaws to designate heritage properties as such and prevent their demolition or alteration; and some require heritage property owners to enter into easements and covenants registrable on title for the protection of same.

Government expropriation

What regime applies to government expropriation of real estate?

The expropriation of real estate falls under both federal and provincial regulatory regimes. The federal government has the statutory authority to expropriate land or immovable real rights for public works or other public purposes pursuant to the Expropriation Act (Canada). Similarly, each province and territory has expropriation legislation which grants expropriation powers to authorities such as the provincial government, municipalities and utility companies.

What is the required notice period for expropriation and how is compensation calculated?

Expropriation legislation across the country sets out specific procedural requirements for expropriating authorities, such as prescribed notice periods. Compensation is generally based on the fair market value of the lands being expropriated and in some instances may include reasonable costs and damages for injurious affection.

Environmental issues

What environmental certifications are required for the development of real estate and how are they obtained?

Municipalities generally require developers to obtain building permits and planning approvals, among other things, before constructing new developments or redeveloping brownfields. At the time of submission of applications and fees for these regulatory permits and approvals, municipalities may require studies and records such as environmental site assessments, environmental impact assessments and records of site condition to be commissioned. A record of site condition, which is essentially a summary of the environmental condition of a property based on assessments completed by qualified persons, can be filed with some provincial governments following the satisfactory clean-up of contaminated property in order to limit potential future liability of developers, property owners and others.

What environmental disclosure obligations apply to real estate sales?

Sellers generally have a legal obligation to disclose environmental contamination with respect to real estate on sale in Canada. Nevertheless, in certain jurisdictions such as British Columbia, prescribed environmental disclosure obligations can be waived by a purchaser.

What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?

Environmental contamination and remediation of real property is governed by both federal and provincial or territorial legislation; however, enforcement is primarily at the provincial or territorial level, and clean-up requirements vary across the country. Although responsibility and potential liability to regulators, buyers and third parties for environmental clean-up generally rests with the seller or person that caused the contamination, subsequent owners, occupiers and those exercising control over real property can attract liability for such contamination. As between buyers and sellers, landlords and tenants or owners and managers, environmental liability is often addressed and allocated by representations, warranties and indemnities in the underlying agreement. Notably, however, parties cannot contract out of regulatory liability and their liability for environmental contamination is potentially unlimited, subject to certain provincial governments recognising and accounting for the contractual allocation of liability by the parties.

Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?

The federal government uses a variety of regulations, incentives and other policy instruments to promote energy efficiency and reduced emissions in both newly constructed and existing buildings.

In terms of regulation, the National Energy Code of Canada for Buildings 2011 (Canada) sets a national standard of energy performance by establishing minimum energy efficiency requirements for the design and construction of new buildings. These standards enter into force of law only if adopted by a province or territory, and jurisdictions such as British Columbia are beginning to adopt and adapt the national code. The Energy Efficiency Act (Canada) also gives the federal government authority to prescribe standards for products that affect energy use in both new and existing buildings, such as household appliances, heating and cooling systems and light bulbs.

In terms of incentives, there are a number of provincial, municipal and private sector incentives available for buildings certified to the Leadership in Energy and Environmental Design (LEED) standards or that use ENERGY STAR qualified products. Every newly constructed federal office building must meet the LEED gold standard of environmental performance. ENERGY STAR Portfolio Manager is a voluntary national energy benchmarking initiative that allows users to track, compare and rate their building’s energy performance online with a view to reducing their carbon footprint and receiving recognition.

These are just a few examples of the regulations and incentives in place to promote energy efficiency and reduced emissions in buildings across Canada.

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