We Know What You Did Last Summer: Land Use Planning Edition

The late spring and summer of 2024 brought yet more changes to Ontario’s land use planning framework as the province continued to refine the regulatory context for development. Among other changes, amendments to the Planning Act were brought into force which narrow appeal rights, and a new Provincial Planning Statement was released, offering updated policy guidance on settlement area expansions and employment conversions. With the end of summer 2024 upon us, we briefly summarize the more consequential aspects of recent changes affecting developers and municipalities. 

In April 2024, the province introduced Bill 185, the Cutting Red Tape to Build More Homes Act, 2024. As outlined in our April 2024 Update, “Shifting Sands – Ontario Proposes More Changes to the Land Use Planning Framework through Bill 185” , Bill 185 as initially proposed would have established a broad prohibition on appeals of Council-approved official plan and zoning amendments. The amendments as initially proposed would have limited the right to appeal the approval of official plan and zoning by-laws amendments to public bodies, the Minister of Municipal Affairs and Housing, and a list of “specified persons” primarily consisting of infrastructure providers, such as utility companies, railways, and telecommunications companies. Importantly, as initially drafted, this prohibition on appeals would have also prohibited landowners from appealing municipally-initiated official plan and zoning amendments, meaning landowners would have had no ability to appeal official plan amendments or zoning amendments affecting their lands to the Ontario Land Tribunal (the “Tribunal”).

Through committee consideration, Bill 185 was ultimately modified to allow landowners to appeal Council-approved official plan and zoning amendments. The final version of Bill 185, which received Royal Assent on June 6, 2024, allows a registered owner of land to which the amendments would apply to appeal the decision to the Tribunal, provided the owner made oral submissions at a public meeting or written submissions to Council before the amendment was adopted or enacted. 

While this modification to Bill 185 was welcome news to landowners, it requires a careful approach when making oral and written submissions to Council. Whereas developers would sometimes make submissions on behalf of a parent company or a company responsible for advancing the development of lands, the Planning Act now requires that the registered owner of the specific lands subject to the proposed amendments make submissions to secure a right of appeal. Landowners should take care in ensuring submissions to Council are prepared accordingly. 

The final version of Bill 185 also expanded the list of “specified persons” who have a right to appeal official plan and zoning amendments to include the owners or operators of airports and NAV Canada, as well as the following:

On August 20, 2024, the province issued the Provincial Planning Statement (the “New PPS”), which is intended to replace both the Provincial Policy Statement (the “Existing PPS”) and the Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”) in establishing overarching planning policy direction for development in the province. The New PPS, which will take effect on October 20, 2024, reflects a change in policy approach in a number of areas, including the following. 

The Growth Plan currently sets out forecasted population and jobs to 2051 for most large municipalities in the province. In conjunction with the establishment of the New PPS, the Growth Plan will be repealed, along with its population and employment forecasts. Instead, the New PPS provides that planning authorities shall base population and employment forecasts on projections published by the Ministry of Finance. 

This approach would allow the province to update its projections on a more regular basis. It would also appear to provide municipalities more flexibility in establishing their growth forecasts; rather than having to conform with the forecasts in the Growth Plan, municipalities can establish their own forecasts, based on the province’s projections. This could have impacts on matters relating to settlement area expansions, among other things.

The Existing PPS provides that “significant built heritage resources” shall be conserved. The term “significant built heritage resources” is broadly defined as resources that have been determined to have cultural heritage value or interest. Under the New PPS, the direction to conserve applies to “protected heritage property”, which is more narrowly defined as:

The provisions of the Planning Act outlined above relating to appeal rights are now in force. The New PPS will take effect on October 20, 2024. The province is consulting on transition regulations with respect to the New PPS, which may provide that the Existing PPS continues to apply to certain matters. The comment period on the transition regulations closes on October 4, 2024. We will continue to monitor the process as it advances. In the meantime, for more information, please contact any member of our Municipal and Land Development Group.