If a developer does not like the decision of a municipality or if the provincial timelines for the decision have been exceeded, the Planning Act permits an appeal to a provincial quasi-judicial court. There have been several names for this body, most famously the “Ontario Municipal Board” and until recently, the “Local Planning Appeal Tribunal.” The latter was most recently renamed the “Ontario Land Tribunals.” In any event, this body has been the source of much frustration for residents and municipalities.
The Planning Act directs provincial tribunals to review applications that are appealed to the “de novo” or, “from the beginning.” What this means is that tribunal members are specifically encouraged to review applications or policy before it as if it were brand new, without putting weight on either community or municipal objections. These tribunal hearings typically pit lawyers and experts against each other and can make it difficult for resident concerns to be heard without incurring the expense of one’s own lawyer and experts.
What tribunal members are asked to do when is to review the relevant policy and make a decision in place of a municipality. As policy can often be flexible and the powers of the tribunal can be controversial, tribunal members largely determine whether applications or new policy represent “good planning” by leaning heavily on expert opinions, such as from planners and architects. In the event that a hearing is contested, they will frequently weigh expert opinion on all sides and determine which experts whose opinion they “prefer,” and typically make their decisions based on this expertise. This typically means that local concerns are given little weight, instead favouring experts who can best express and defend their respective positions.
Under normal circumstances, following a review of an application or municipal policy, City Planning will write a report to Community Council with a recommendation, typically either asking City Council to “approve” or “refuse” it. City Council is typically very reluctant to make a decision that is not in line with staff advice. Overturning a staff recommendation is particularly an issue in the event of an appeal, as it puts a municipality at a terrible disadvantage at the tribunal. A City Planner whose opinion is overturned will, professionally, be unable to defend a contrary position at the tribunal. This typically would lead to the City needing to hire an “outside planner” to defend its position. These outside planners have historically have been hard to find and have not often resulted in success during contested hearings.
In the best-case scenarios where City Planning is onside with City Council and willing to fight at a contested hearing, the City historically has won less than half the time. This is why settlements are very commonly sought by the City; it reduces risk and allows a municipality to get “something” out of the settlement, such as community benefits, rather than risking a tribunal member issuing a decision that may result in the City getting nothing it seeks. The same can be said for developers, who have a lot more to gain in the event of approval or settlement.