There are many situations in which a developer may need to begin construction before a certain date, but cannot get their building permit in time. In Ontario that is usually because they cannot yet meet some very minor “applicable law” requirement that, according the Building Code Act, they must comply with in order to obtain the permit.
A conditional building permit can often get around this problem, even though many municipalities in Ontario use them so infrequently that they seem barely aware that they have the authority to issue them. Conditional building permits are authorized pursuant to s. 8(3) of the Building Code Act, and allow an applicant to proceed with construction even though all “applicable law” requirements necessary to obtain a building permit have not yet been met. Instead, there is only a much shorter and less onerous list of “applicable law” requirements that must be met. Even in larger municipalities conditional building permits are not always raised as an option to applicants, even if they could potentially benefit in reduced fees and commence their construction much sooner.
Some of the more common circumstances in which a conditional building permit can be useful include:
Beating an upcoming development charge (or other fee) increase, typically payable upon issuance of the first above-grade building permit; Where a Record of Site Condition pursuant to the Environmental Protection Act has not yet been secured and is expected to delay issuance of the building permit significantly; Where a Committee of Adjustment has approved variances but the statutory Ontario Municipal Board appeal period has not yet expired.
The conditional building permit agreement that is required typically sets out the timelines within which the applicant must comply with the remainder of the “applicable law” requirements for a building permit, and deals with how and if the site must be restored should those requirements not be fulfilled.
Using a law firm with experience in securing conditional building permits can be important. Many Ontario municipalities do not even have template conditional building permit agreements ready. This can dramatically slow down the process if the applicant’s law firm also does not have its own precedents and the agreement has to be drafted from scratch. Some municipalities’ templates are also very one-sided in favour of the municipality and should be negotiated, not simply signed.