The Planning Act

Poll

The Planning Act also sets out the province’s ability to use Minister’s Zoning Orders (commonly referred to as “MZOs”). These orders allow the province to effectively impose development rights to a property or group of properties, as well as skipping any public process. MZOs are a tool that the province can use, but one that historically has been used with great caution. Used well, cities like Toronto have been able to use them to accelerate affordable housing projects for people experiencing homelessness. Used recklessly, MZOs have threatened both historical buildings in the West Don Lands as well as sensitive wetlands in the Greater Toronto Area. The current provincial government has used them with much higher frequency, and has sought further amendments to expand their powers and use.

Like many municipal processes, urban planning begins with provincial legislation. Under Canada’s Constitution Act, 1867, provinces were given authority over towns and cities within their borders. Municipalities are sometimes referred to as “creatures of the province,” and their lack of Constitutional authority creates an uneven relationship that allows provinces to dictate quite broadly how municipalities are run. The rules for submitting, reviewing, and approving development applications in Ontario stem from the Planning Act.

The Planning Act allows anyone to seek to amend either a municipality’s official plan, zoning by-law, or both. There is no “test” to determine whether an application is appropriate prior to submission; whether it is “good planning” and meets provincial and municipal policy is determined following submission through a public process, including community consultation. The right of appeal is always guaranteed. This both encourages developers to seek amendments, but arguably encourages them to submit aggressively tall and dense applications, either scaling them back during the process or seeking to appeal at the first opportunity if there is pushback from the City and community.

Official Plans & Zoning Bylaws

There are two key pieces municipalities are required to enact through the Planning Act: an official plan and a zoning by-law. An official plan is the guiding policy document for a municipality that provides direction to city staff as to how the City should grow. Municipal policy however must follow from provincial policy through such documents as the Growth Plan for the Greater Golden Horseshoe and Provincial Policy Statement.

Planning Policy

Provincial planning policy is important as it directs how municipalities themselves must review development, as well as helps guide tribunal members if a developer appeals its application or municipal policy.

Zoning Bylaws

Zoning by-laws are development standards that are meant to be a reflection of municipal policy in the official plan. They provide strict direction on what is permitted on a site, including maximum heights and densities, permitted uses, setbacks and stepbacks, number of parking spaces per residential unit, and much more.

Zoning by-laws should reflect the aspirations of a city’s official plan. In many cases in Toronto, the in-force zoning by-law does not reflect its Official Plan, leading to frequent site-specific amendments. As an example, policy may direct mid-rise (6+ storey) or tall-building (typically 12+ storey) development, but the in-force zoning by-law may only permit a maximum of four-storeys. This often occurs because the zoning by-law is updated much less frequently than the overarching policy, with many places downtown reflecting zoning standards from 1986 or earlier.

Most development applications require a zoning by-law law amendment. A typical zoning by-law amendment will follow this process:

Zoning Application Process

Municipalities update their own policy in a similar fashion, and like with development applications, developers and landowners can choose to appeal this policy direction to the provincial tribunal.

City Council is only the final authority on a decision if there is no appeal. The costs of an appeal are not low, but the ability to seek a “second opinion” from a tribunal member means that it is rare where a refusal on a development application does not lead to a lengthy appeal process at the provincial tribunal, which does not favor municipal decision making.

Land Use Planning Tribunals

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.

My Motions

Given the complexity of the planning and development process, I have put forward a number of motions over the last 10 years to ensure community voices are heard.

After reading about all the ways that the province has control over the City of Toronto’s planning and development process, it’s easy to see why our city is put at an extreme disadvantage when it comes to refusing development applications. Provincial policy is currently directing significant intensification downtown, which Toronto must accommodate under the Planning Act. The existence of provincial land use planning tribunals can take the final decision out of the hands of municipalities and helps heavily encourage both appeals and settlements.

WHY SHOULD YOU CARE?

Changing this is not possible without significant reforms that are outside of the City’s control. If it can be said that the development process favours developers, its roots lie in the provincial Planning Act. While there was an attempt at reform under the previous Liberal Government, the current Conservative government reversed those reforms and more. The current government has also expanded its use of Minister’s Zoning Orders, which can be used to skip both the public consultation process and potential to appeal to the tribunal.

Our community saw this happen in January 2021 when the province showed up on-site with the intention to demolish four 100+ year old heritage buildings on the Foundry Site in the West Don Lands after silently issuing three MZO’s. These MZOs - which bypassed the typical planning processes, including community consultation - were issued without notification to City Planning or the local Councillors’ offices. The Province’s intentions were to create a “clean slate'' for a future developer to redevelop the site without being burdened by necessary city approvals related to the heritage buildings.

The community rallied together in support of preserving the Foundry cites, and against the Province’s use of MZOs which bypassed proper community consultation. Only after a stop-work injunction was the province forced to temporarily pause their demolition. We shouldn’t have to fight to create a city that best reflects our needs. Local voices help build complete communities. #RespectLocalPlanning

FoundryFriends Tweets

Read about how community activism led to a condo developer in the village re-evaluating the importance of community and cultural spaces.

 

MOVING FORWARD

What the City can and has tried to do is to create a strong local policy that can hopefully be defended at a provincial tribunal. Up-to-date zoning by-laws can assist in encouraging developers to not seek zoning by-law amendments, resulting in applications that reflect the City’s intentions in an area. It should continue to be advocated to the province that more weight be placed on municipal decisions so that City Councils--not a tribunal--are planning our communities.

It’s critical that if you want your voice to be heard, that your comments go to City Planning. City planners have a professional obligation to the public interest, which includes listening to feedback on planning applications. The City’s Application Information Centre contains information on current development applications, including their status and who with City Planning the file is assigned to along with their contact information.

Phone: 416-392-7903
Constituency Office: 100 Queen St W, A5, Toronto, ON M5H 2N2