The Ontario government has announced that it will introduce legislation to replace the Ontario Municipal Board (“OMB”) with a new Local Planning Appeal Tribunal (“LPAT”). The most important change is the elimination of the OMB’s power to substitute its decision for decisions made by a municipality or its committees. The OMB currently makes planning decisions after a fulsome hearing, in furtherance of the goal of implementing good planning. Instead of that normative approach, the new LPAT will only be allowed to consider whether the decision “does not follow” provincial policies or municipal plans. If the decision does not fail on those tests, it cannot be overturned - even if the LPAT were to find the initial decision to not be good land use planning. The LPAT will be required to send the matter back to the original decision maker for another decision. Only on a successful second appeal would the LPAT be able to substitute its decision for that of the municipality or committee.
As the Province has described it, the LPAT will be a “true appeals body”.
This is a huge change in the land use planning regime for Ontario. The proposal will need to be implemented through not only legislation but in detailed regulations and Rules for the LPAT, transition provisions for the OMB and the municipalities and the allocation of funding for not only the LPAT but also the new Local Planning Appeal Support Centre, a provincial agency which is to provide free and independent advice and representation to Ontario citizens.
Some of the other changes which exclude certain decisions from appeal (e.g. new Official Plans, major Official Plan updates and provisions dealing with growth in major transit areas) are continuations of the changes the Province has introduced in recent years to shelter major planning decisions from appeal, although those changes are potentially more sweeping than what has come before because they focus on “who” makes the decision without also considering what the subject matter of the decision is.
Rather than provide a summary of the Province’s already short outline, this article will offer some preliminary thoughts and suggestions for land owners who may be wondering what, if anything, they should do now. Miller Thomson will offer our thoughts to municipalities and public bodies separately in another article.
We believe that the overall impact of these changes is to make the land development appeal process more legally oriented than it is currently. Today, it is planning and other expert professionals who play the primary role in allowing the OMB to assess what is the ““best” planning decision”.
The Ministry has said that it understands a transition period is needed and will work to “define the appropriate transition period”. It is clear that in addition to the legislation, which is likely to be introduced quickly before the Legislature breaks for its summer recess at the beginning of June, regulations and rules for the LPAT will need to put in place. While we do not know what those transition provisions are going to be and whether the legislation will attempt to make the new regime retroactive to filed appeals, it is not unreasonable to expect that appeals already underway will continue to be heard by the OMB. Landowners with development interests should immediately consider whether they want to move ahead under the existing regime and file appeals if needed to the OMB.
The Provincial Backgrounder introduces the term “does not follow”. There are already a range of standards which municipalities and the OMB apply to various planning documents, ranging from no “conflict” (Niagara Escarpment Plan), through “conform” (Official Plans, Places to Grow Plan, Greenbelt Plan, Oak Ridges Moraine Plan) and “consistent” (Provincial Policy Statement) to “have regard to” (matters of Provincial interest). The manner in which that term is either clarified or expanded upon in the new legislation, the regulations or through litigation is going to determine how narrow the appeal rights are going to be at the LPAT. Landowners will now want to be careful and strategic in structuring their planning applications at the very outset to maximize the potential for appeal. This should involve strategic legal input at an early stage of the application process to preserve the potential for an appeal to the LPAT since these will primarily be legal disputes.
We expect those unhappy with local decisions will resort more in the future to purely legal challenges. Judicial review applications to the Courts will almost certainly increase once the more flexible and end-result oriented OMB appeals are no longer available.
The flow chart which accompanied the Provincial announcement indicates that examination and cross-examination of witnesses will not be allowed at LPAT hearings. The press release does however suggest that evidence will be limited to written materials in the “majority of cases”, which does suggest there may still be some ability for the LPAT to hear from witnesses. Nonetheless, in the majority of cases, lawyers will now be the primary players before the LPAT instead of planners and other consultants. The hearings will likely become more adversarial with the loss of the idea (and indeed the OMB Rule) that the focus of OMB hearings is on expert witnesses offering “fair, objective and non-partisan…assistance” to the OMB. Instead of primarily hearing from those whose “duties [to the OMB] prevail over any obligation owed by the expert to the party by whom…he or she is engaged”, the LPAT will primarily hear argument. Landowners’ applications and materials will now need to be prepared on the assumption that expert evidence will not be heard but must be fully set out in the legal record.
Every appeal to the LPAT will now undergo a mandatory case conference to explore settlement and to narrow the issues. These may play an important role in resolving appeals, particularly where appeals are brought by ratepayers or neighbours. Once details of how the Local Planning Support Centre will provide assistance and funding is provided, we will see how significant a role it and neighbours will play in the process.
The proposal to allow Local Appeal Bodies to hear site plan appeals will have little initial impact because the City of Toronto remains the only municipality where such a body has even been set up.
It is likely that the legislation will be introduced next week before the Legislature breaks for the summer. We, like every other stakeholder in the Province, can only say at this point that the “devil is in the details”.