Conditional Permit Guidelines & Toronto Building Update
The City of Toronto (“City”) Development Charge (“DC”) rates are scheduled to increase on November 1, 2019. The City’s DC rates are determined and payable upon the issuance of a building permit (“BP”); therefore, in order to lock in the current DC rates and avoid the increase a BP must be issued on or before October 31, 2019.
BP’s are only issued upon compliance with the Ontario Building Code, the City’s Zoning By-law and other “Applicable Law”, which includes the Environmental Protection Act, the Ontario Heritage Act, and the Planning Act, amongst others. In the event an applicant does not have all necessary approvals in place to obtain a BP, the Chief Building Official (the “CBO”) has the discretion to issue a conditional building permit (“CP”).
The CBO may issue a CP if the applicant can show that the outstanding approvals are in the process of being obtained and that non-issuance of a CP would cause unreasonable construction delays. Importantly, the City will not consider avoidance of DC increases as an appropriate reason causing an unreasonable construction delay in order to obtain a CP. There are three categories of CP’s:
- Below grade CP;
- Above grade CP; and
- Below and above grade CP
DC rates are determined and payable upon the issuance of BP, or an above grade CP. If an applicant does not have the necessary approvals to obtain a BP, discussions with City staff have confirmed that DC’s are in face payable upon the issuance of an above grade CP (or a below and above grade CP) if issued on or before October 31, 2019.
The issuance of CP will be subject to entering into a CP agreement that sets out, among other things, a six-month timeframe for obtaining all outstanding approvals, a 60-day timeframe in which construction must be commenced, and the assumption by the applicant of all risks with proceeding in advance of the issuance of a BP. If a below-grade CP is requested, the applicant will also be required to enter into a DC payment deferral agreement acknowledging that DC’s will be paid at the time of first above grade permit issuance.
In the past, CP’s have been used as a method to avoid increases in DC’s due to a lack of monitoring and enforcement of timelines by the City after the issuance of a CP. This is about to change.
Due to spikes in requests for CP’s prior to scheduled DC increases, the City will not be considering CP applications within 30 days of a scheduled DC increase. This means that a CP must be applied for by October 1, 2019 at the latest in order to obtain a CP prior to the scheduled DC increase. While the application cut-off date is 30 days, the City has the ultimate discretion on whether to attend to a CP application and issue a CP. If your intention is to receive a CP prior to the DC increase, we strongly suggest applying as early as possible as the City may not have the capacity to review given the large influx of applications submitted prior to DC increases.
The City is now putting much more rigour into how they process and enforce CP’s. For greater clarity, the requirements and monitoring guidelines for CP’s are not changing; rather, the City will be more strictly adhering to them. It is important to note that these are merely guideline documents and do not force the City to consider applications even if they were submitted prior to the 30 day deadline. What follows is a brief guide to obtaining and maintaining CP’s in the City. For a more detailed overview on CP applications, please refer to the City’s guidelines.
Conditional Permit Request
CP’s can be issued for below grade construction, above grade construction, and for both below and above grade construction. It is important to note that only CP’s issued for above grade construction or for below and above grade construction will trigger payment of applicable DC’s. The issuance of a below grade CP does not result in DC payment.
To obtain a CP for below grade construction, a written request must be submitted to the City, which must include:
- Sufficient information explaining and documenting the circumstances as to why an unreasonable delay in construction would occur if the CP is not issued;
- An up-to-date construction schedule for the entire project, supported by a letter from the applicants general contractor confirming the ability to carry out construction in accordance with the construction schedule; and
- Confirmation that the previous stage of construction and/or demolition must be substantially completed;
- Compliance with all zoning requirements and any interim control by-laws enacted under s. 34 and 38 of the Planning Act.
- Compliance with all “Applicable Law”
- CP’s have an abridged list “Applicable Law” that must be complied with prior to issuance
- Applicable law(s) from the Ontario Building Code which have not been satisfied;
- Steps which have been taken to resolve the outstanding Applicable Law and the time required to obtain these approvals;
- City Planning endorsement
- Toronto Water endorsement or long-term dewatering agreement in place
- Acknowledgement that the owner assumes all risks in a CP agreement
- Proof that all requirements have been met.
A CP request for above grade construction must also include, in addition to the foregoing requirements, a Notice of Approval Conditions (“NOAC”) issued by City Planning as well as verification from a Toronto Building Inspector that below grade construction is substantially completed.
A CP request for both below and above grade construction must include all the aforementioned requirements, but will only be considered when below grade construction does not exceed two storeys and will reach grade within a reasonable time. This timeline must be supported by a construction schedule and general contractor letter. The City has indicated that a “reasonable time” to reach grade is approximately 4-5 months.
Significant Timelines
The City requires approximately 30 days to process CP requests. CP requests will not be considered within 30 days of a scheduled increase in DC rates. This means that, in order to pay current DC rates and avoid the increase, complete CP applications must be submitted by October 1, 2019.
In the event a NOAC is imminently forthcoming from the City but has not been issued by October 1, 2019, the City has indicated that they will consider the request if they are spoken to beforehand and can confirm the imminence of a NOAC.
While the City has indicated that the cut-off date is 30 days prior to the DC increase, the City has the ultimate discretion and may not be able to process an application in time despite the fact that it was submitted prior to the deadline.
It is strongly encouraged that you reach out to the City’s Plan Review Staff immediately if you wish to receive a CP prior to November 1, 2019.
Conditional Permit Monitoring
CP’s will be subject to revocation where the terms of the CP agreement have not been met. The City has stated that inspectors will be sent out to monitor timelines and that CP’s will be revoked in the event of non-compliance. Typical terms include construction seriously commencing within 60 days of CP issuance, reaching grade within 4-5 months (if CP is for both below and above grade construction) and obtaining outstanding approvals within six months. The City has indicated that inspectors will arrive on the 60th day after CP issuance to ensure that construction has commenced.
Summary
If you wish to receive a CP on or before October 31, 2019 you must submit a complete application by October 1, 2019 at the latest, as the City might not have the capacity to review it given the spike in applications that will be forthcoming. If the City deems a last minute application incomplete for any reason, which they have wide discretion to do, the application may not be accepted. Only an above grade CP or an above and below grade CP will trigger payment of DC’s. It is strongly recommended that you reach out to the City’s Plan Review Staff as soon as possible.
