Bill 98: Building Homes and Improving Transportation Infrastructure Act, 2026
Part 3 – Resurgence of Encumbered Land and POPs as Parkland
This blog constitutes Part 3 of the Davies Howe Bill 98 and Related Proposals blog series and describes the reintroduction of the Bill 23 proposed parkland reform, which never came into effect.
Bill 23 received royal assent on November 28, 2022 and introduced various new subsections to the Planning Act to establish a framework where “encumbered land” (i.e. land subject to an easement or having below grade infrastructure) and privately owned public spaces (“POPs”) would count towards parkland dedication requirements. The framework also provides a right to appeal to the Ontario Land Tribunal where encumbered land or POPs were rejected by the municipality as appropriate parkland dedication. The requirements to identify the “encumbered land” or POPs to the municipality were proposed to be prescribed by regulation; however, the regulation was never prescribed, likely in part due to the complexity of implementation, and these sections were not ordered into effect.
Bill 98 now proposes further amendments to this framework to provide clarity and, most notably, to permit the proponent to appeal the municipality’s failure to make a decision on a proposed conveyance of encumbered land and/or POPs as parkland to the Ontario Land Tribunal if the municipality does not provide notice of its decision within 90 days of receiving the request.
In addition, while Bill 23 introduced the ability of the Tribunal to consider whether the land identified for parkland meets the prescribed criteria and, if so, order that the land be: (1) conveyed to the local municipality for park or other public recreational purposes, and (2) deemed to count towards the parkland dedication requirements, Bill 98 would limit the Tribunal to only be able to credit 70% of the land area as parkland dedication, unless a municipality determines that a greater percentage should be recognized. This cap represents a notable shift from the Bill 23 framework, effectively reducing the value of encumbered land and POPs for parkland dedication purposes and reinforcing municipal discretion in determining whether a higher credit should be applied.
According to the ERO Posting No. 026-0312, open for comment until May 14, 2026, a regulation will be prescribed as contemplated by Bill 23 which is proposed to include the “Land Suitability Criteria” for “encumbered parkland” and POPs as follows:
- Land Suitability Criteria:
- Ineligible Land – contaminated lands, hazardous lands, lands within or adjacent to a natural heritage system that would not support a park use, lands with financial encumbrances and lands that are privately-owned and not accessible to the public, would not be eligible as “parkland”
- Land Accessibility/Comfort for Use – the parkland must be accessible, visible and comfortable to facilitate public use of it
The regulation is also proposed to include the following “Implementation” matters:
- Documents to Support Identification of Land – specified lands and boundaries through a plan of survey and topographic plan and an attestation from the land or an authorized representative
- Notice to Owners – municipality to provide notice to the owner within 20 days of making a decision
- Record to the Ontario Land Tribunal – sets out the municipality’s requirements to forward the material to the OLT upon receiving an appeal
Similar to Bill 23, these amendments are to come into effect on a day to be named by order of the Lieutenant Governor in Council. Presumably, the Bill 23 proposed changes would also be ordered into effect at that time.
Conclusion
These proposed changes suggest a more structured but more constrained approach to the use of encumbered land and POPs to satisfy parkland dedication requirements than what was contemplated by Bill 23.
The Davies Howe LLP team is here to update you as to if and when this new parkland regime is ordered into effect, and what impacts this may have on your development project.