Fundamental changes to the Ontario Municipal Board, the tribunal that oversees land use planning disputes, are underway.
Bill 139, the Building Better Communities and Conserving Watersheds Act 2017, was passed on December 12, 2017. It will replace the Ontario Municipal Board (OMB) with the Local Planning Appeal Tribunal (LPAT). The new legislation is expected to give greater weight to municipal decisions and restrict the type of planning matters that can be appealed. It also sets out new methods for how disputes can be considered and how hearings should be conducted, while also setting timelines for how long it should take the tribunal to make a decision.
“Once an appeal has been submitted all the information that was provided to them (the LPAT) by the municipality – the minutes, the reasons for a decision, all of the public input – they would just consider that and not request any new evidence… and then make a decision based on that,” Manager of Planning Services Kirstin Maxwell told the Town’s Planning Committee at its January 16 meeting.
Maxwell added that the new legislation, once in place, would appear to be much more straightforward with fewer options for appealing council decisions, especially as it pertains to matters already addressed in planning documents such as Huntsville’s Official Plan, District’s Official Plan as well as the Provincial Policy Statement (PPS). She said hearing decisions would be mostly based on considering whether council’s own decision on a planning matter was consistent with those planning documents.
“Do you sense that there’s much chance that they’re going to be more respectful of council’s decision than the OMB has been?” asked Deputy Mayor Karin Terziano. “I don’t believe that they will be able to pass judgment on things in the same sense that the OMB right now can take everything and totally overturn it and upset it,” Maxwell said. “They are specifically going to be having regard to official plans at our level and at the District level and their decisions will be based on the existing planning documentation that’s been provided.”
But not everyone is lauding the new legislation. Planning consultant and owner of Plan Muskoka, Savas Varadas, has mixed feelings about the changes ahead, noting that sometimes what appears good on paper is entirely different once it is implemented and put into practice.
He said the changes proposed would appear to try and provide citizens, the Province and municipalities with more power when it comes to planning decisions, but in many ways it also restricts the decision-making ability of the tribunal to come up with the best planning decision.
“There was a similar shift in this direction previously when the OMB was required to start ‘having regard to’ the decisions made by municipalities rather than simply looking at each case on even grounds. Bill 139 seems to take that to a new level by directing the OMB (or LPAT) to only review whether or not the case/proposal is consistent with the Provincial Policy Statement and official plan (OP) policies. This removes the ability for the LPAT to review evidence provided outside consistency with the PPS and conformity with the OP and make a decision that the LPAT feels is the best planning decision,” stated Varadas in an email to Doppler.
He said the approach of adhering strictly to official plans or the Provincial Policy Statement is troublesome. He maintains that the intent of an official plan can sometimes be lost in the wording of a particular policy and policies in the Provincial Policy Statement can sometimes be too broad for certain applications, especially in this area.
Often matters of provincial interest do not translate well to Muskoka, whose development patterns, growth patterns, and even the landscape is much different than the GTA or other areas of southern Ontario. I’ve struggled to understand how some PPS policies benefit our area sometimes, and now that those policies will have more power than ever over our development applications, that seems troubling. Planning Consultant Savas Varadas of Plan Muskoka
Varadas said he’s also concerned with the removal of appeal rights as they pertain to official plans, amendments to the same and interim control bylaws.
“This is in attempt to allow municipalities to begin implementing their proposed land use changes immediately without the risk of lengthy appeals to the OMB, as we’ve seen in the past. In theory this sounds reasonable, but I’m not sure I agree with the implementation. Previously, when an official plan was appealed to the OMB, all the appeals were reviewed, scoped down to certain sections that were contested, and then the remaining parts of the document that were not under appeal were implemented and then hearings were held to decide the fate of the portions that were under appeal. I agree, this process was time consuming, but rather than removing the appeal rights of the public, I would have preferred to see a fast-tracking of appeals to OPs so that the parts of the document not contested are implemented in a more timely manner,” he said.
Overall, crafting an OP is a difficult thing to do, and to believe that the municipality, their staff, committees, and their consultants have absolutely planned every aspect of land development fairly and properly in their document is unreasonable. Not everything is caught through the public process of creating the document. And sometimes, changes to the draft document proposed by land developers or other members of the public falls on deaf ears and an appeal is the only remaining avenue.savas varadas, planner
He maintains that removing certain rights to appeal, unless approved by the Minister, “may cause more problems later [rather] than allowing us the opportunity to fix them before implementing. Again, this seems troubling.”
On the other hand, Varadas is applauding initiatives to streamline the hearing process and the provision of planning clinics, expected to be made available to members of the public who form part of an appeal. He sees that as beneficial because he believes appeals are sometimes made and carried through without a proper understanding of the nature of what’s being proposed.
“This could help streamline the process, and perhaps may avoid appeals, or have more settlements occur,” he said. “The OMB process is presently very time-consuming and I for one welcome any attempt to reduce that process in time and cost.”
The notion that the OMB has been friendly to developers in the past is not something Varadas necessarily agrees with.
“The OMB has usually been seen as a developer friendly forum, and I’m not sure I agree with that. I believe that the OMB has been somewhat incubated from political pressures, numbers of people with a NIMBY attitude, and other non-planning related evidence so far, and when making decisions, have overturned municipal decisions that they feel may have not been made based on sound planning evidence. This gives the appearance of a developer friendly process. I fear that this will have a profound effect on the growth of our communities, but I may be wrong. We’ll have to wait and see,” he concluded.
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