*Originally posted on October 28, 2022, updated on November 30, 2022.
On October 25, 2022, the Province introduced Bill 23, More Homes Built Faster, 2022, which received royal assent on November 28, 2022. The Bill was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) on October 31, 2022, and was subsequently amended. The below blog has been updated to reflect these amendments.
Bill 23 is the third installment in the Province’s Housing Supply Action Plan, following Bill 108, More Home for Everyone, 2019, and Bill 109, More Homes, More Choices, 2022. Bill 23 introduces the most sweeping changes yet.
Bill 23 amended nine different statutes and introduced a new statute regarding the construction of servicing infrastructure in the Region of Durham and York. As many of these changes will have significant impacts on the land development process, this blog post constitutes Part 1 of Davies Howe LLP’s Bill 23 series. Part 1 focuses on the Province’s changes to the Planning Act (the “Act”) and provincial policy documents that are proposed to streamline planning approvals and increase the supply of housing. Below are some of the most significant highlights:
Removal of Third-Party Appeals
One of the most significant changes is the removal of third-party appeals of a decision on a minor variance or consent application. This is implemented by various amendments to the Act, the most obvious being the new definition of “specified persons”, which mirrors the definition that was used for appeals of draft plans of subdivision (introduced by Bill 108), and includes:
- A corporation operating an electric utility in the local municipality;
- Ontario Power Generation Inc.;
- Hydro One Inc.;
- A company operating a:
- natural gas utility;
- an oil or natural gas pipeline;
- a railway line; or
- a telecommunication infrastructure provider,
provided the company is in the local municipality or planning area to which the relevant planning matter would apply; or
- A person required to prepare a risk and safety management plan under Ontario Regulation 211/01 (Propane Storage and Handling) pursuant to the Technical Standards and Safety Act, with some additional requirements.
Previously, a person or public body had the right to appeal decisions regarding official plans, zoning by-laws, consents and minor variances, if the person or public body had made oral submissions at a public meeting or written submissions to the municipality before the respective decision was made. A “person” is not defined by the Act. While this right of appeal remains for decisions regarding official plans and zoning by-laws (note that Bill 23 originally proposed to remove all of these third-party appeal rights), for decisions on plans of subdivision, minor variance applications and consent applications, only the applicant, the municipality, the Minister and such “specified person” is permitted to appeal.
These amendments are retroactive in that a third-party appeal of a decision regarding a minor variance or consent application would be dismissed unless a hearing on the merits was scheduled before October 25, 2022. A hearing on the merits does not include dispute resolution processes or case management conferences. However, an adjournment or rescheduling of a previously scheduled hearing does not impact the third party’s appeal.
In addition to the elimination of third-party appeals, the changes introduced by Bill 139 to the Act and the Conservations Authorities Act that limit the appeal rights of conservation authorities will be re-enacted and effective on January 1, 2023.
Additional Residential Unit Permissions and Building Homes Near Transit
The Province intends to build 1.5 million new homes in ten years. One effort to increase the number of homes is to allow property owners to add new units within their existing homes. To facilitate this intention, various sections of the Act were amended to permit up to three residential units as-of-right. This means that one lot may contain three residential units, either all in the primary unit, or two in the primary unit and one in an ancillary unit. Notably, these new subsections only apply as-of-right to a “parcel of urban residential land”, which is defined as a parcel of land that is within a settlement area where residential use is permitted by by-law and that is served by full municipal water and sewage services. The amendments do not permit an official plan or zoning by-law to require the provision of more than one parking space or to prescribe a minimum floor area of the residential units. These units must still be compliant with the building code and municipal by-laws. However, they are exempt from development charges and parkland dedication fees (see Part 2 for more information on development charges and parkland fees).
In addition, existing and future official plan policies, zoning by-laws and ministerial zoning order provisions that do not permit three residential units on a parcel of urban residential land, regulate a minimum floor area of a residential unit or require more than one parking space per residential unit are of no effect as of November 28, 2022.
Additional subsections were also added that require municipalities to update their zoning by-laws to conform with official plan policies regarding major transit station areas within one year of the policies coming into effect. The Province has indicated that the purpose of these new subsections is so that transit-supportive densities will be permitted in the zoning by-law as-of-right. If a municipality does not update its zoning within one year, an appeal may be filed regarding these policies, notwithstanding that appeals of zoning by-laws related to protected major transit station areas are otherwise not permitted, except in narrow circumstances.
Removal of Powers from Upper-Tiers
On a date to be proclaimed by the Lieutenant Governor in Council (“LG”) amendments to the Act provide for two different classes of upper-tier municipalities: those which have planning responsibilities and those which do not. Various amendments were made to provide lower-tier municipalities with planning functions when they form part of an upper-tier municipality that is designated as being without planning responsibilities. This removes planning policy and approval responsibilities from certain upper-tier municipalities who currently possess these responsibilities, including the rights to appeal decisions regarding official plans, zoning by-laws, minor variances, draft plans of subdivision and consents. Accordingly, the Minister of Municipal Affairs and Housing (the “Minister”) would become the approval authority for these lower tier official plans and official plan amendments. The Minister’s decision is not subject to appeal.
While the LG may prescribe upper-tier municipalities without planning responsibilities by regulation, Bill 23 has initially included the County of Simcoe as well as the Regions of Durham, Halton, Niagara, Peel, Waterloo and York.
Other Streamlining Proposals: Site Plan Control, Public Meetings, Rental Replacement and Provincial Policy Documents
Various amendments were passed to the City of Toronto Act, 2006 (“COTA”) and the Act with respect to site plan control areas. In particular, matters relating to exterior design, which currently include the character, scale, appearance and design features of buildings, are proposed to be excluded from site plan control. However, matters relating to building construction required by a by-law under specified sections of the Municipal Act and the COTA, including green roofs, alternative roof services or other environmental standards in the construction of buildings, are still permitted to be controlled by site plan. Further, while the appearance of elements, facilities and works on the land under a municipality’s jurisdiction are not subject to site plan control, there is an exception where the appearance impacts matters of health, safety, accessibility, sustainable design or the protection of adjoining lands. Essentially, exterior design is no longer subject to site plan control except for environmental exterior design features.
Residential development of 10 units or less is also excluded from site plan control, except for the development of land lease communities.
Previously, the Act required a public meeting to be held on plan of subdivision applications. Bill 23 removed this public meeting requirement.
On a day to be proclaimed by the LG, section 23 of the Act will provide the Minister with more authority to amend official plans if they are of the opinion that the plan is likely to adversely affect a matter of provincial interest. Currently, the Minister may amend official plans if the provincial interest is set out in a policy statement issued under subsection 3(1). They are also required to advise council about the issue and provide council with the opportunity to resolve it before amending the plan by order. However, these requirements will be removed. In addition, Bill 23 removes the possibility of the Minister to request that the Ontario Land Tribunal hold a hearing on a proposed amendment to resolve such matter of provincial interest.
Both the COTA and the Municipal Act were amended to authorize the Minister to enact regulations related to the replacement of rental housing and when it is proposed to be demolished or converted. Municipalities may enact by-laws to regulate rental housing replacement. Now, the Minister could use this authority to limit the powers of a local municipality to regulate the demolition and conversion of residential rental properties. This is particularly relevant in the cities of Toronto and Mississauga, where these by-laws already exist.
The Province is also proposing multiple policy document changes, the most significant being the integration of A Place to Grow: Growth Plan for the Greater Golden Horseshoe and the Provincial Policy Statement into one province-wide planning policy instrument. The proposal is posted here, and the comment period closes on December 30, 2022. The Province is seeking input on how to enable municipalities to approve housing faster and increase housing supply. It proposes to discuss the following core elements:
- Residential land supply;
- Attainable housing supply mix;
- Growth management;
- Environment and Natural Resources;
- Community infrastructure; and
- Streamlined planning framework.
Conclusion
For more information on Bill 23’s changes to Ontario’s planning regime, please visit Parts 2 to 6 of the blog-series.
If you wish to discuss how this implements your development or appeal rights, please do not hesitate to contact the team at Davies Howe LLP.
