December 29, 2021
The Ontario legislature has struggled for years for ways to streamline and simplify the planning process, including appeals, in a way that respects public interest but does not prevent orderly development.
Various techniques have been tried:
- introducing provincial policy statements (PPS) to guide local decision making
- making compliance mandatory
- no, really, making it mandatory
- requiring that applications for hearings set out reasons for appeal that make planning sense
- screening frivolous appeals, such as those by “Nimbys”[1] or “bananas”[2]
- repeated tinkering with land use appeal tribunal names, structures and rules
And then there is section 34 (19.0.1) of the Planning Act, which is still slightly less complex than the Income Tax Act:
If the appellant intends to argue that the by-law is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or fails to conform with an applicable official plan, the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document.
The Ontario Court of Appeal took a rare opportunity to consider planning appeals and this provision in particular in Maynard v. Mississippi Mills (Municipality).
The Court found that rather than going to court to attempt to quash the planning by-laws, the Ontario Land Tribunal has exclusive jurisdiction to hear challenges to the by-laws.
Unfortunately, they did not have to discuss the effect of this section as a screening mechanism for frivolous appeals at the Tribunal level. However, the fact that they quoted this section in their brief judgment dismissing the appeal suggests that courts courts are taking not only jurisdictional limits seriously, but are signalling that measures to streamline and focus the process will be supported by the courts.
Objectors will have to advance legitimate planning objections to stall development. This should lead them to consult lawyers and planners at an early stage. The Rules of Practice and Procedure of the new Ontario Land Tribunal provide that the tribunal, on its own initiative will screen out not only frivolous claims, but also those that so not meet some aspect of the statutory requirements – like section 34(19.0.1).
Developers will know that if the notice of application is defective, they may move to have it dismissed without a full hearing.
Decision makers can focus on the merits, whether at the municipal council level or a Tribunal hearing.
Hopefully, all of this will facilitate smart and timely planning decisions and orderly development.
Weilers LLP has the legal expertise necessary to advise and assist developers, municipalities, or residents at all stages of the land planning process. We focus on Northwestern Ontario. Being based in Thunder Bay, and working regularly throughout the region, we understand the unique nature of development in the north. We can put that knowledge to work for you.
[1] “Not in My back Yard” – objectors advancing personal rather than public interests
[2] “Build Absolutely Nothing Anywhere Near Anything”- opponents of all development