Introduction to Land Use Planning Law ............................................................................ - 5 -
Historical Origins of Land Use Planning Law .............................................................. - 6 -
Common Law Based Land Use Controls .......................................................................... - 10 -
Private Nuisance ............................................................................................................ - 10 -
Public Nuisance .............................................................................................................. - 13 -
Trespass ........................................................................................................................... - 13 -
Rylands v. Fletcher (Strict Liability) ............................................................................ - 14 -
Negligence....................................................................................................................... - 14 -
Planning Philosophies and Policies .................................................................................. - 15 -
Land Use Planning Challenges in Toronto ...................................................................... - 21 -
The Institutions of Planning ............................................................................................... - 23 -
The Federal Government ................................................................................................. - 23 -
The City Municipality ...................................................................................................... - 24 -
The Three Municipal Eras in Ontario.......................................................................... - 25 -
Phase 1: The Baldwin Act of 1847 ............................................................................... - 25 -
Phase 2: Regionalization ............................................................................................... - 26 -
Phase 3: Amalgamation ................................................................................................ - 27 -
Municipal Jurisdiction and the Common Law – Dillon’s Rule ............................... - 33 -
The Municipal Act – Powers of Municipalities .......................................................... - 35 -
Scope of Powers – s.8 (Jurisdiction) ............................................................................. - 39 -
The Courts .......................................................................................................................... - 42 -
Lessons and Impact of Greenbaum ............................................................................... - 44 -
Relationship between General and Specific Powers under the Municipal Act ...... - 44 -
The Ontario Municipal Board ........................................................................................ - 45 -
Specific OMB Functions ................................................................................................ - 45 -
OMB Power to Revisit Decisions ................................................................................. - 46 -
Effect of OMB Decisions – Finality and Review/Appeal ........................................ - 47 -
Defining the Jurisdiction of the OMB ......................................................................... - 47 -
Critiques of the Ontario Municipal Board.................................................................. - 50 -
OMB Reforms Designed to “Reign In” Its Power ..................................................... - 51 -
The Province ...................................................................................................................... - 52 -
Basic Planning Principles from Planning Act ............................................................. - 52 -
Issues of Provincial Interest from Planning Act ......................................................... - 53 -
Provincial Policy Statements ........................................................................................ - 54 -
Consequences when Municipality Fails to Follow a PPS......................................... - 55 -
Smart Growth & the Places to Grow Act ...................................................................... - 56 -
The Places to Grow Act, 2005 .......................................................................................... - 57 -
Official Plans ..................................................................................................................... - 59 -
Statutory Effect of Official Plans .................................................................................. - 65 -
Ontario Planning and Development Act, 1994 ............................................................... - 68 -
Key Points on Official Plans ......................................................................................... - 69 -
The Community ................................................................................................................ - 70 -
Theories on the Community and Public Participation ............................................. - 71 -
Methods of Community Participation ........................................................................ - 74 -
Different Types of Community Interests .................................................................... - 76 -
Legal Mechanisms for Participation ............................................................................ - 77 -
The Zoning Power................................................................................................................. - 78 -
Statutory Regime for Zoning under s.34(1) ................................................................ - 78 -
Rule-Making under s.34(1) ........................................................................................... - 79 -
Statutory Rule-Making Procedures – ss.34(12) to 34(18) .......................................... - 80 -
Random Other Kinds of By-Laws................................................................................ - 84 -
Implications of Zoning for Landowners – Down-Zoning & NCUs ........................ - 85 -
Compensation for Expropriations ............................................................................... - 85 -
Compensation under the Ontario Heritage Act .......................................................... - 86 -
Compensation under the Greenbelt Act (or lack thereof) ........................................ - 86 -
Arguments for and Against Compensatory Remedies .............................................. - 88 -
Zoning for Conservation ................................................................................................. - 89 -
The Greenbelt Act, 2005 .................................................................................................. - 90 -
Conservation Authorities Act, 1946 ................................................................................. - 95 -
Non-Conforming Uses ......................................................................................................... - 98 -
Definition and Scope of Protection for NCUs ............................................................ - 98 -
Establishing an Established Use .................................................................................... - 99 -
Has the Use Changed So Much as to be Lost? ........................................................... - 100 -
Continuity and Change of Use and Impact on NCU Protection ............................ - 101 -
To What Extent does the Law Permit the Expansion of Legal NCUs? ................ - 102 -
Two Dominant Judicial Opinions on Intensification within s.34(9) ..................... - 103 -
s.45(2) and the Committee of Adjustment ................................................................ - 104 -
Limitations on the Zoning Power – The Principle of Non-Discrimination ............ - 105 -
Doctrine of Non-Discrimination as Applied to Zoning By-Laws ......................... - 106 -
Limitations of the Zoning Power – Property and People ............................................ - 109 -
Canadian Charter of Rights and Freedoms, 1982 – Section 15 ..................................... - 111 -
City of Toronto Shelter By-law 1380-2003 ................................................................ - 112 -
Discretionary Zoning Powers ........................................................................................... - 113 -
Holding By-Laws – s.36 .................................................................................................. - 113 -
Temporary Use By-Laws – s.39 ..................................................................................... - 114 -
Bonusing – s.37 ................................................................................................................ - 115 -
Summary of Key Conditions for Bonusing: ............................................................. - 116 -
Interim Control By-Laws – s.38 .................................................................................... - 117 -
Competing Perspectives on Interim Control By-Laws ........................................... - 118 -
Site Plan Control ................................................................................................................. - 120 -
Development Permit Systems ...................................................................................... - 123 -
Minor Variances .................................................................................................................. - 125 -
Subdivision Controls ......................................................................................................... - 127 -
Main Subdivision Rules and Procedures.................................................................. - 128 -
Development Charges ........................................................................................................ - 129 -
Development Charges in Toronto ............................................................................. - 130 -
Social Housing Planning in Toronto – Regent Park .................................................... - 132 -
Building a New Community – Theoretical Perspectives ....................................... - 134 -
Regent Park Revitalization Plan ................................................................................ - 134 -
Urban Heritage Conservation ........................................................................................... - 137 -
Individual Property Designation Process (Under Part IV of OHA) ............................ - 140 -
Municipal Powers to Prevent Demolition ................................................................... - 141 -
Heritage Appeals before the OMB ............................................................................ - 143 -
Archaeological Sites ................................................................................................... - 144 -
Aboriginal Peoples – Reserves and Land Use Planning ............................................. - 146 -
Indian Act .................................................................................................................... - 148 -
Land Management on Reserve.................................................................................... - 149 -
Planning Process on Reserve Lands ........................................................................... - 150 -
Categories of First Nation Lands ............................................................................... - 152 -
First Nations Land Management ............................................................................... - 155 -
Introduction to Land Use Planning Law
Mobility, Sustainability, and Identity are three important concepts in Planning (from
film – “City Limits”:
o Mobility – do not want to cut off or isolate people, e.g. public transportation,
pedestrian thoroughfares, etc.
o Sustainability – self-explanatory, e.g. interconnected and expansive park
systems, hiring people in slums to do recycling, etc.
o Identity – a sense of community, public transportation (creates a sense of identity
by mixing people of all classes), commitment to social system and social
development, focus on supporting underprivileged people
The Canadian Institute of Planners defined “planning” as „the scientific, aesthetic and
orderly disposition of lands, resources, facilities and services with a view to securing
the physical, economic and social efficiency, health and well-being of urban and
Historically, planning was confined to fringe area and not to downtown, more urbanized
areas, but this has switched in the modern community.
o Planning can be associated with many different geographies, and it is a matter as
to what extent it should be confined to central urban areas, or to control urban
sprawl, etc. Also consider cultural/ethnic/class geographies.
Greenspan and Vaughan defined planning in 1972 as „Fundamentally, planning is both
political and a process: a process in that there can never be an end result that
represents a permanent community consensus; political in that every planning
decision benefits some interests and harms other interests”.
Land Use Planning LAW is, essentially, the regulatory framework for making decisions
about how a society manages and produces human settlements. It is the regulation of the
project of planning.
o It explores the sources of legal authority for planning decisions, the extent of that
authority and how it can be exercised, and the implications of the legal structuring
of decision-making for the management of conflict among different interests.
The Legal Regime in Ontario is governed by the Planning Act, 1990 – s.1.1
The purposes of this Act are,
a) to promote sustainable economic development in a healthy natural
environment within the policy and by the means provided under this Act;
b) to provide for a land use planning system led by provincial policy;
c) to integrate matters of provincial interest in provincial and municipal
d) to provide for planning processes that are fair by making them open,
accessible, timely and efficient;
e) to encourage co-operation and co-ordination among various interests;
f) to recognize the decision-making authority and accountability of
municipal councils in planning
Historical Origins of Land Use Planning Law
Andrew Lundgren – “Beyond Zoning: Dynamic Land Use Planning in the Age of Sprawl”
In the Colonial period, legislatures were passing many different planning regimes in
towns; in the USA there was no constitutional protection of private property rights.
In Canada, aboriginal rights to land are protected, but there is no protection for any other
Planning is all about providing for the public interest and putting constraints on what
private landowners can do.
At this time, planning controls included:
o A lot of regulation on aesthetics, e.g. not having houses too close to the street, etc.
Aesthetics was associated with order and cohesion, and a more safe,
orderly and cohesive community could be created through aesthetics
Planning has gone through different levels of scope from generation to generation – it is
now much more complex than in the past.
A very important part of planning historically was public health, i.e. unsanitary
conditions were leading to disease and problem needed to be addressed.
Gerald Hodge – “Planning Canadian Communities”
Recall that prior to the 20th century, there was early colonial settlement regulations, the
industrial revolution (which affected urban land use), and this was the beginning of the
rise of local government – e.g. The Baldwin Act, 1849
o Hodge described early 19th century Toronto as “sstagnant pools of water, green as
leek, and emitting deadly exhalations are to be met with in every corner of the
town – yards and cellars send forth a stench from rotten vegetables sufficient
almost of itself to produce a plague and the state of the bay, from which a large
proportion of inhabitants are supplied, is horrible”
Hodge states that you cannot have a planning system with a system of local government,
as it is the government system that provides the mechanisms and necessary institutions
for a land use planning regime.
There is no national regime of local governance in Canada, but there is some degree or
harmonization between local governments, and it is relatively similar between the
In Ontario, the 1st legislation was the Municipal Act (Baldwin Act) in 1849.
o This Act still exerts its influence today, with the use of a two-tier system of local
Note that the two-tier system is also common in other jurisdictions.
Lower tier deals with local issues, with a regional system on top of that.
o Another attribute of the Baldwin Act is provincial oversight – the province is
uncomfortable delegating too much authority to provinces, and so they retain
some kind of on-going control or oversight.
In addition, the province can change the Act and thus change the
responsibilities and powers of the municipality.
There were 3 restrictions on the early systems of local government.
1) The British North America Act does not provide that municipalities have the same
status as provinces; rather they are creatures of the province – “Constitutional
Thus, for example, Canada cannot abolish Ontario, but Ontario can
2) Fiscal restrictions – local governments do not have a great deal of income.
This is due primarily to the fact that the revenue base of municipalities is
generally restricted to property taxes.
Fiscal restrictions can also reside in the responsibilities that local
governments have, e.g. municipalities in other countries like Australia are
not responsible for things such as emergency services.
3) “Expertise” – municipalities have historically lacked the relevant technical skills
to deal with the new responsibilities they had to take on, which hindered them for
For example, they lacked engineers, planners and architects.
We now recognize that expertise is a matter of both technical knowledge
and public consultation.
Turning to the 20th century, some of the seminal indicators in land use planning was the
growth of the Planning Profession itself – American Planning Associations was
established in the early 1900s, with Canada following soon after.
The impact of economic changes was also an important historical development
o The Great Depression changed planning, as a system of planning was used to try
and resuscitate the economy, providing an “adrenaline injection” for economic
development, e.g. by making it easier to set up a factor, etc.
Planning system is a product of, among many other things, economic
pressures to create a framework that is conducive to business
This era also saw innovations in planning laws and the development of planning laws.
o 1912 – first wave of planning laws was adopted in Canada, in Ontario, New
Brunswick, Alberta and Nova Scotia
o The UK was an important source of inspiration for those planning laws.
o These planning laws sought to control subdivision on urban fringes.
o In this era, planning was confined to developing rather than developed areas
Note that we no longer follow this philosophy because the idea that once
an area is developed there is no further need for planning is passé; we now
recognize that developed areas are still in need of planning and that
planning is an on-going process
Another feature of early planning was strong oversight retained by provincial gov‟ts.
o For example, the Ontario Cities and Suburbs Plan Act
This Act only applied to cities with a population of at least 50,000 people
Strong oversight of municipalities by the province was demonstrated in
A new problem also emerged in this era, because with the growth of planning there is a
greater impact on private property rights.
o Impact can be dramatic, as planning law essentially nationalizes right to develop
o Governments began to take away some private property rights (e.g. right to
develop) from freeholds
o This is controversial because there is no compensation for the loss of these
rights, e.g. not being allowed to build a high-rise on land that you own.
o Note that in the USA, property rights are constitutionally-protected, so there is a
precedent for compensation in certain circumstances.
Some of the first good plans in Ontario arose during this era, e.g. Ottawa/Hull in 1915,
and the first plan for K/W
The first half of the 20th century saw innovations in planning tools – e.g. the emergence
of zoning (based on the premise that incompatible land uses should be separated from
each other), subdivision controls, by-laws, etc.
1945 - Present
In 1946, new planning legislation was introduced, influenced by Alberta legislation.
o Its key features, many of which still exist, included the creation of planning units
(i.e. create an institutional unit responsible for planning); a process for preparing
and approving official plans (i.e. the blueprint for telling us what we can and
cannot do in a municipality); delegation of powers between provinces and
municipalities; subdivision controls; quasi-judicial appeal mechanisms (now the
OMB); the idea that municipalities would be elected bodies with councils and
thus provide some kind of democratic process for planning.
In the 1950s, there was a new concept in planned dubbed “Urban Renewal and
o Regent Park is a good example of this – a large public housing debate created
after clearing a slum to create modern housing for the poor, which is now being
demolished and re-done.
This raises the question of to what extent planning can actually create a
community – consider subway development in the 1940s, Gardiner
The 1950s to 1960s saw an era of modernism, investment, etc.
The 1970s saw a public backlash against planning, e.g. protesting against the Spadina
subway, the rise of NIMBYism, etc.
In the 1980s, expansion was replaced with preservation, e.g. the implementation of the
1975 Heritage Act in Ontario
o This saw the end of “super plans”, e.g. a plan for the entire GTA, and a shift
towards smaller-scale plans
o Old system dealt with looking at tools and means to do things, whereas the new
model focused on goals, i.e. what do we want to create
o The old system was very technical, and the new system is more communicative,
with a greater amount of community involvement, etc.
o New system is focused on “multiple politics” – the diversity of modern views that
must be accommodated in planning
In the 1990s, the Harris/Conservative government created another shift in planning, with
the emphasis on getting government out of development and telling communities what to
do, with the idea that the market was a better mechanism for determining public good
than was the government – the trend towards deregulation.
o For example, the Land Use Planning and Protection Act, 1996
This act introduced municipal mergers, the idea that there should not be so
many local governments, but rather some should be grouped together in
order to realize economies of scale
It also introduced greater rights for public review and appeal in order to
challenge government decisions
This Act provides a re-instatement of the important concept that
municipalities must have regard to provincial policies when they
i.e. provincial policies are a matter of law with regards to local
In the modern/current era, the focus in on sustainable development
o Planning law is now seen as being increasingly part of the domain of
o In Ontario, planning law is associated with certain types of environmental themes,
e.g. Greenbelt reform, pesticides bylaws, tree protection bylaws, etc.
Note that Richardson thinks that climate change is going to be „the‟ issue for the 21st
century, and it will affect everything we do, for instance:
o Building regulations (energy efficiency standards)
o More public transit, and policies to discourage private cars
o Integrating living, working and recreating, so less need for commuting
o Reforestation of cities (carbon sinks) including green roofs
o Waste management policies
Common Law Based Land Use Controls
This is primarily derived from the UK common law system.
The common law has 2 relevant fields: tort law and contract law. It is tort law that forms
the basis for most of the common law-based land use controls.
o However, restrictive covenants in contract law can also have an impact on LUP.
The common law system helps planning because it puts decision-making, to some extent,
in the hands of the property owners
Note that common law is a reactive system, not a proactive system, since it relies on
There are five types of common law actions:
o Private Nuisance*
o Public Nuisance
o Rylands v. Fletcher (strict liability)
Private Nuisance is the most common of these torts.
It can be defined as “unreasonable interference with the reasonable use and
enjoyment of land”.
o Note that this is based on the reasonableness of the conduct, i.e. how reasonable is
your use of the land you want protected versus the enjoyment of your neighbours?
o You must hold an interest in this land to sue on this tort, i.e. it is a property right,
and you must have an interest in the land in question – but this decisions are not
For example Hunter v. Canary Wharf (UK): tower interfering with radio
transmission signals in area; issue was who had an entitlement to claim
private nuisance, and court said there must be an interest in the land – so a
landowner or tenant, but not a licensee.
In Canada, Sutherland held a similar view, but Devon Lumber Company
v. McNeil (1987) held that lodgers with a license to use property (who
were not landowners or leaseholders) had a right to complain of private
o Private nuisance also has a locality doctrine – you must look at the character of
the locality, and if historically it is an area that has been home to industry, the
Court may say that his locality is an area that historically has been much polluted,
and if you choose to live there you cannot complain of private nuisance.
o The nuisance must also be sensed; must have a tangible element or the Court will
disregard it. This is the basis for the calculation of damages.
o The nuisance must also have a duration, i.e. it must be on-going and not a one-off
o Nuisance must also be reasonable, i.e. no recovery for a hyper-sensitive plaintiff.
- 10 -
There are three defences to private nuisance: an easement by prescription, statutory
authority, and planning permission.
o Easement by Prescription – Courts will recognize a right to create a nuisance if
the defendant has been doing it for 20 years, so long as it has been done openly,
continuously, and is otherwise lawful. This equals an easement by prescription.
o Statutory Authority – This means that there is an entity causing nuisance to
neighbours, but the entity can state that they have permission from a statute to
perform that nuisance-generating activity.
Test requires that the legislation must either expressly contain the
obligation to commit the nuisance, or it can be argued that it is a clear
implication of the Act that the permission to do so is include in the
Example – Mandrake Management v. TTC, where Mandrake brought an
action against the TTC for noise/vibrations from St. George Station
disrupted their ability to carry on their business, in order to get an
injunction or damages. TTC argued statutory authority under the
Municipality of Metropolitan Toronto Act, s.107
TTC lost at trial, but decision overturned at OCA – public interest
and the delegated authority of City Council to develop the TTC.
OCA read statutory authority into the Act even there it was not
there explicitly. Court also considered the reasonableness
requirement, as it is unrealistic for the TTC to re-design part of the
subway system. Performed a balancing analysis between public
interest and private property rights, i.e. public service vs. a sole
Some of the factors identified by the Court were utility of public
services, plaintiff was hyper-sensitive to the nuisance, even if there
was a nuisance there was a defence of statutory Authority, as s.104
of the Municipality of Metropolitan Toronto Act provides the TTC
power to set up and run a subway station, and it imposes a duty on
them to do so indicating a statutory obligation
Cited the SCC case of St. Pierre v. Ontario – “Highways are
necessary: they cause disruption. In the balancing process inherent
in the law of nuisance, their utility for the public good far
outweighs the disruption and injury which is visited upon some
Also cites the case of Tock v. St. John’s Metropolitan Area
Board, 1989, SCC - “... if the legislature expressly or implicitly
says that a work can be carried out which can only be done by
causing a nuisance, then the legislation has authorized an
infringement of private rights.... There is no question that
legislation may expressly authorize an interference with private
rights by so providing in explicit language. Where the only
- 11 -
reasonable inference from the legislation is that such interference
is authorized, then the same result obtains by implication.”
Another important case is Sutherland v. Vancouver International Airport
(2002) – in this case, the airport was found liable for nuisance, and the
defence of statutory authority was unsuccessful. This case is significant
because the court found that nuisance was not an inevitable result of the
“For the defence of statutory authority to apply in this case, the
defendants must show: firstly, that constructing and operating the
north runway was an undertaking authorized by statute, and
secondly, that the nuisance created for the plaintiffs is the
"inevitable result" of the exercise of that authority”
Other important cases include Allen v Gulf Oil Refining Ltd (1981) (UK);
Gillingham Borough Council v Medway (Chatham) Dock Co Ltd
(1993); and Wheeler v J.J. Saunders Ltd (1996)
o Planning Permission – this defence is one step removed from statutory authority,
where someone has given permission for development, i.e. permission is not from
a piece of legislation, but from a local government acting under their statutory
authority. Note that most of these cases come from the UK.
Gillingham Borough Council v Medway (Chatham) Dock Co Ltd (1993)
– in this case, it was successfully argued that planning permission is
similar to the defence of statutory authority because the permission comes
from authority under a statute.
Wheeler v J.J. Saunders Ltd. (1996) – this case cut back the previous
decision, and said that planning permission cannot be acquitted with
statutory authority except in one situation: where there is evidence that
decision-makers were looking at strategic and public interest in the
locality and took into account the likely implications of granting approval.
This involves looking at how the decision was made / approval was
Limitations to Private Nuisance
Problems of Proof (i.e. it is hard to equate damage with nuisance, especially when there
are multiple sources)
Focus is on protection of property rights, so a remedy is only given to those with property
Is reactive, rather than proactive (i.e. only responds to problems, does not
Remedies may not be appropriate
Hassles of litigation – expensive and time consuming.
- 12 -
Addresses behaviour that unreasonably affects the comfort and convenience of life (i.e.
rather than just someone‟s enjoyment of private property)
o An isolate act may amount to a public nuisance, whereas a private nuisance
requires a duration.
o However, widespread effects of the nuisance must be demonstrated.
o Plaintiff must be affected in some way over and above the rest of the general
public; otherwise, they must ask the Attorney-General to bring the action on
behalf of the public.
One example of this is having your economic livelihood particularly
Hickey v. Electric Reduction Co. of Canada Ltd. (1970) (Nfld.) – this case involved a
smelter in Newfoundland polluting a river and killing fish, affecting those was fished in
the river. One of the affected people was not able to get justice from the Court because
they felt they had not been “particularly affected” or suffered a special loss.
o “I think the right view is that any person who suffers peculiar damage has a right
of action, but where the damage is common to all persons of the same class, then
a personal right of action is not maintainable.”
With Ontario‟s Environmental Bill of Rights, 1993, the Parliament is modifying the
common law through legislation, and now in Ontario the government is eliminating some
of the legal obstacles to bringing a claim for public nuisance.
The tort of trespass involves direct interference and intentional or negligent behaviour
Esso Petroleum Co. Ltd. v. Southport Corporation, 1956 – Court found no trespass for
an oil spill on a beach, because it was not a direct interference since it was determined
by tides and wind.
- 13 -
Rylands v. Fletcher (Strict Liability)
If someone brings onto their property something so inherently dangerous and not
naturally there, and it escapes and causes damage to others, there will be liability even if
there was no negligence or fault.
o Note that the defendant must be in lawful occupation of the property
The tort of negligence requires five factors:
o A legal duty owed by the defendant to the plaintiff
o A breach of the standard of care
o Cause in fact (i.e. causation)
o Proximate cause
o Damage suffered by the plaintiff as a result
Smith Brothers Excavating Windsor Ltd. v. Camion Equipment & Leasing Inc.
(Trustee of) (1994)(Ont. Gen. Div.) – this case involved 2 adjoining properties with 2
storage tanks containing large quantities of methanol on one property; tanks were
vandalized by strangers, there was an escape which contaminated the water storage
system on the adjacent property.
o Court did not find negligence and accepted that a duty of care was owed, that
there was causation and damages, but felt that there was no breach of the standard
of care, as there were fences, security guards, etc.; all intended to keep tanks safe.
o Note that this case did not proceed as strict liability because it was a normal use
for the property.
Role of the Common Law in Modern Land Use Planning
Modern planning has its origins in common law controls on nuisances
Common law incapable to serve as a means of comprehensive social, economic and
o It is too expensive, too restrictive, too ad hoc, and places too large a burden on
Retains a residual role where modern planning law controls are not enforced.
- 14 -
Planning Philosophies and Policies
Land use planning is highly politicized
Legal system channels and manages these conflicts
Planning profession has a lot to answer for
New strains on planning system to accommodate sustainable development agenda
Planning system should aim to create livable communities
David Greenspan & Michael Vaughan – “How the Zoning Game is Played: A Look at
Planning systems must accommodate diverse and evolving social values
o There has been a shift in values since the 40s and 50s, e.g. we are now opposed to
sprawl, put an emphasis on more parkland, de-materialization of values, etc.
o Focus on popular politics vs. technocratic expertise to drive land use planning
Now it is virtually impossible to reach a consensus on specific and detailed proposal
about land use – always going to involve opposition from someone in the community
If a plan does gain general acceptance, it is a happy accident that only reflect the
community point of view prevailing at that particular time, but this point of view never
lasts for long
“Fundamentally, planning is both political and a process: a process in that there can
never be an end result that represents a permanent community consensus; political
in that every planning decision benefits some interests and harms other interests”.
Planning process is “not a technical exercise, but rather a war among various
interests competing for benefits”.
Patrick McAuslan – “The Ideologies of Planning Law”
There are three primary ideologies of planning law –
1) Planning law respects private property rights
Role of the planning system is or was to protect landowners‟ enjoyment of
their property, rather than to tell them what they can or cannot do
2) Law is a means to advance the public interest
Gives bureaucrats substantial discretionary powers to exercise the public
3) The rights of citizens to participate in the land use planning process
This gets away from the use of discretion in planning systems in order to
empower the community; give people a voice.
Note that McAuslan is talking about the UK Planning System, but his ideas are
transferable to other jurisdictions, including Canada
- 15 -
Movie – City Limits (based on the philosophy of Jane Jacobs) – 1971
The most important ingredient for successful cities to create streets where people can
walk around and enjoy the city
Streets cannot be too long between blocks, require nice parks and places to meet/interact
with your neighbours
Problems include the focus on the tax base by municipalities, and the planning profession
itself, which is part o the “establishment” and thus cannot be part of change as they have
too much at stake in disrupting the status quo
J.J. is highly critical of the modern planning profession.
She espouses an “organic” view of the ideal city, and favours dense, mixed-use
International Council for Local Environmental Initiatives – The Local Agenda 21 Planning
Guide: An Introduction to Sustainable Development Planning
“Sustainable development, therefore, is a program of action for local and global
economic reform – a program that has yet to be fully defined”.
o Focus is on changing the processes of economic development to make it less
harmful to environmental and community systems
o Growing consensus that sustainable development must be achieved at the local
level if it is ever going to be able to be achieved on a global level.
o “At the local level, sustainable development requires that local economic
development supports community life and power, using the talents and
resources of local residents. It further challenges us to distribute the benefits
of development equitably, and to sustain these benefits for all social groups
over the long term. This can only be achieved by preventing the waste of
ecological wealth and the degradation of ecosystems by economic activities”.
“28.1. Because so many of the problems and solutions being addressed by Agenda 21
have their roots in local activities, the participation and cooperation of local
authorities will be a determining factor in fulfilling its objectives. Local authorities
construct, operate and maintain economic, social and environmental infrastructure,
oversee planning processes, establish local environmental policies and regulations, and
assist in implementing … environmental policies. As the level of governance closest to
the people, they play a vital role in educating, mobilizing and responding to the public to
promote sustainable development.”
“28.3. Each local authority should enter into a dialogue with its citizens, local
organizations and private enterprises and adopt "a local Agenda 21". Through
consultation and consensus-building, local authorities would learn … and acquire the
information needed for formulating the best strategies. Local authority programmes,
policies, laws and regulations to achieve Agenda 21 objectives would be assessed and
modified, based on local programmes adopted. Strategies could also be used in
supporting proposals for local, national, regional and international funding.”
Recall that case come out of the Rio de Janeiro conference – 21 ways to save the
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Re Ottawa-Carleton (Regional Municipality) Official Plan Amendment No. 8 (1991) (OMB)
This case illustrates some of the tensions in the planning system and looks at some of the
principles that should inform land use planning.
This case is important for five specific reasons:
o The dispute was over the re-designation of agricultural land to a hockey arena,
highlight the challenge between preserving prime agricultural land and urban
o It involves the OMB trying to preserve key planning principles – OMB rejects the
assumption that urban sprawl is inevitable.
o OMB tried to play down the principle of the exception/departure from the
principled planning approach
o This case highlights the tensions in the planning system from which an appeal is
made from an elected local council to an unelected body (the OMB)
Recall that the OMB looks at all of the evidence in making its decision; i.e. it is not like
an appeal court that really only deals with matters of law.
This case demonstrates how land use decisions are dealt with in tribunals – the OMB as
having regard to official documents, looking at principles in other OMB decisions, etc.
o In this case, OMB looked at 2 of its prior decisions, including one involving
Mississauga. In that case, OMB took the view that permanent agriculture in the
increasingly-urbanized Mississauga was finished and that urbanization was
inevitable. That principle, however, was not applied in this case.
- 17 -
In this case, the OMB referred to some features of Ontario‟s Planning System:
1) Referred to their own role, and stated that the role of the OMB is to determine the
weight to be attached to public submissions and expert evidence.
This highlights the tension between the views of the public, and the views
2) It is very important in any case like that this that the developer consider alternative
sites, because land planning is never about one area in isolation, it‟s about where else
the activity could take place
3) OMB rejected the extreme views expressed in this case, namely that the OMB should
not interfere in the matter because it was approved by City Council.
They did not accept the view that the OMB should have no role in a
decision just because elected officials have approved it.
However, they also rejected the argument that all agricultural land must
always be protected
4) OMB stated that it is impossible to have a planning system built merely through the
voice of the people through their elected officials because those officials are political
bodies and are not solely concerned with planning principles.
5) Looked at the role of municipal council in the Planning System; cannot have a
planning system built merely through the voice of the people through their elected
officials, because those officials are political bodies and are not solely concerned with
If we only have decisions made by politicians, there could be
inconsistency based on who wins elections, and this would lead to a
corruption of the planning process.
The integrity of the planning system means that the voice of elected
officials must be held in check.
6) The OMB is accountable to Parliament due to the delegated powers from the elected
Minister of Municipal Affairs and Housing.
7) s.2 of the Planning Act is important – many of the principles of planning are
embodied in that section, e.g. protection of financial and economic well-being,
equitable distribution of local resources, protection of environment, etc.
8) An important principle of the planning system is the need for fair hearing of all
interest persons with relevant views to impart, and the OMB is to use good judgment
to weigh the merits of various viewpoints.
The goal is for the OMB to provide an informed, sensitive, independent
and fair judgment.
9) Statements of governmental policy, such as the Foodland Guidelines, must be
regarded by the OMB in making their decisions.
They do not necessarily have to follow these guidelines, but do need to
have regard to them.
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Facts: 100 acres of prime agricultural land in the Ottawa Carleton area was proposed for use as a
hockey arena for the new Ottawa Senators, with associated roads, offices and shops, etc.
Opinion was hotly divided on the project, and the problem was that the site was not
designated under the OP as a sports facility – it was designated agricultural resource land.
In order for the plan to proceed, land would need to be re-zoned. After the re-zoning, a
number of people objected, including a farmer‟s group, a citizen‟s group and the Ministry
of Agriculture. They appealed decision to OMB.
Issues: What were the relative roles of “community” and “expertise” in this case? How were
they represented? What were the planning principles? How did the OMB resolve the
conflicts between them?
Reasons: OMB looked at the evidence on the creation of jobs from going forward with the
proposal and accepted arguments a bout the economic benefits, thus highlighting that
economic issues are an important consideration in the planning process. OMB also
accepted evidence that the community would get a sports/artistic venue which would
provide important social benefits to the community. OMB found that there would be
more traffic congestion, but was satisfied that the developer would provide adequate
access roads and parking lots, etc. OMB did feel that the overall size of the stadium
should be reduced. OMB was satisfied that environmental needs, e.g. sewerage and
storm water management, would be addressed. OMB did state that only one ancillary
office tower could be built, instead of the proposed 2. OMB was concerned about the
loss of agricultural land, and noted that the area was class 1 agricultural land, and once
developed could not be converted back to productive use for food production. However,
they rejected evidence from consultancy groups that this was an urbanizing corridor that
lacked consistency in land use, and also rejected developer‟s argument that this was an
emerging urban area, e.g. that market principles would dictate that this area will be
developed, either now or in the future. After hearing evidence from stakeholders, OMB
concluded that the area was predominantly a farming area, and there was no basis to the
argument that the agricultural land was second-rate and it was inevitable that it would be
urbanized. OMB was concerned that the order made by Ottawa City Council was not
adequately respectful of some of the other positions taken by government as to how to
protect agricultural land, e.g. by the Ministry of Agriculture. OMB also considered fact
that Ottawa had not designated land for a sports facility in 1988 when it created its OP,
which apparently annoyed them. OMB noted that OP promised to provide a process to
make changes such as this, and that the municipality failed to do so. OMB granted
approval for the project, with some modifications made to scale.
In approving the stadium, the OMB made sure to say it was not a precedent, but rather a
one-off special situation. They felt that the natural environmental in the area could be
protected or enhanced, and were satisfied that the transportation and infrastructure needs
would be met by the developer with no undue financial burden on residents. They were
concerned that unless approval for the stadium was granted, Ottawa would not get
approval from the NHL to get a hockey franchise, so TOTE.
Finally, OMB stated that you can undermine the OP as long as it is for proper purposes –
the OP is open to amendment, so long as it is for proper purposes. Thus, even though
agricultural land would be lost, when the balance is looked at, then approving the stadium
is the right decision.
Richardson thinks this is an odd decision, because in the end prime agricultural land was lost.
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Leonie Sandercock – “Dreaming the Sustainable City: Organizing Hope, Negotiating Fear,
and Mediating Memory” and “Planning for Cosmopolis: A New Paradigm”
Her thesis describes three “contemporary urban quests that will garner positive energies
and shape great cities”:
Argues that western cities have done things to destroy diversity – they are segmented, no
critical exciting edge, they are bland and monotonous, with no diversity
Her article is apparently one of “hope” – sees a lot of positive change, talks about
Melbourne, its preservation of older buildings, etc.
Argues that many cities have lost any sense of community – people feel isolated, lonely,
Cities are fragmented into smaller communities, e.g. ethnic communities, gay
community, etc. – and when you move outside that community, you feel alienated.
o To her, the acid test of whether planning has created a good community is a
feeling of belonging everywhere in the city.
The third element is sustainability – need to take responsibility for the physical and
spiritual condition of our cities; get rid of cars; increase recycling; live in more compact
spaces; talk about social sustainability, e.g. making streets safe to walk
However, the question is how to achieve the three goals above:
o Uses 2 examples – Sydney and Liverpool
Talks about the issues in Redfern, Sydney under “Negotiating Fear”
o It was an area designated by the government for aboriginals
o For various reasons, the area degenerated, there was a lot of hostility to the
presence of the aboriginal community by other people in the area, leading to
increased tensions and violence
o residents were able to sit down in a process of community-based mediation to
design a framework to re-develop the area in order to meet the needs of both
This was a healing process for both sides.
Also talks about Liverpool, which has memories of past as a hub in the British slave trade
o The planning system wanted to revitalize the docks of Liverpool, and create a
museum and housing.
o This would serve to “remediate memories” of its past.
The three goals of a good planning system are ones that address the things of memory,
desire and spirit
o Some plans “steal our memories” and this is bad.
o The 2nd theme the city of desire – she talks about how fascinating it is to go to a
city and be a people-watcher.
The „city of desire‟ is the opposite of a city of fear.
o Thirdly is the theme of spirit – too many cities are soulless, which is apparently
why we go on vacation.
o She rails against the view that planning can be a matter of principles.
- 20 -
Land Use Planning Challenges in Toronto
Film – The End of Suburbia: Oil Depletion and the Collapse of the American Dream
The “suburban project” can be characterized as the greatest misallocation of resources in
the history of the world.
Cheap oil = very bad, and end of cheap oil = end of the world (i.e. the American way of
First suburbs were created for rich people to live in, in order for them to get away from
the dirty industrialized city and its dirty workers
This lead to the street-car suburb, which provided transportation out of the city proper to
Then come the depression, WWII, and the post-war building boom
Suburbia ended up being a false promise – it was not country living, there was no
connection with living things or organic systems, just had a lawn without the amenities of
country life or city life, just the disadvantages of both
The real problem then was transportation – home to work, home to school, home to
shopping – everything was too far. So cars ended up being the only way to get in and out
Population growth only occurs near interstates and declines where there aren‟t interstates.
This is also due to cheap oil, and is evil.
Cheap fossil fuels drove the growth of suburbia, and continue to do so.
Themes of the Movie:
o Suburbs are VERY BAD THINGS.
o Cheap oil caused the growth of suburbs, and this makes them unsustainable.
o Buildings road was just like “subsidizing suburbia”.
o The American Dream is the Canadian Dream.
Richardson thinks that the relation between land use planning and social forces is that
planning is an expression of these forces, with little ability to control them.
o Social pressures create the processes of planning.
Current Trends and Problems in Toronto
Condos and upward development
Unsustainability – cheap fuel, air pollution, culturally unsustainable, loss of agricultural
- 21 -
Readings / Articles – pg. 105 to 125
process of amalgamation to take advantage of efficiencies of scale may have had an
effect on democracy in those cities – pg. 145: City of Toronto Act Governing Principles
move over the last few decades may, to some extent, have been at a cost of the
article also talks about downloading of additional responsibilities onto city council by
Harris government, without an enhancement in local capacity and democratic roots in the
planning system – no more mechanisms for accountability
description in article of what Toronto is based on 3 areas: pre-1930s inner-city (high park
to Danforth, from downtown up to St. Clair west), then 1945-1965 from Lawrence to
somewhere, then the 3rd region north of Steeles “the 905”
Criticisms: planning system in Toronto does not adequately deal with and plan for
o Planning deals with a dynamic environment, e.g. population, changes in family
size, and planning system is not adequately flexible to deal with those changes
2nd criticism – deals with past problems, not future problems.
o planning should be proactive, not retrospective
Difference of Toronto and Vancouver – Toronto Star article, pg. 121
o 3 important differences:
1) Vancouver‟s planning system pays more attention to aesthetics, and has
that in the planning laws, whereas Toronto does not have that same
2) In Ontario, we have the OMB, and we saw the role of it in Senators case.
Vancouver does not have that, so there is more empowerment of the first-
level planning authorities without having to worry as much about appeals
3) In Vancouver, there are no wards, so elections are for people at large, not
for each constituency
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The Institutions of Planning
The Federal Government
Federal government does not have any particular constitutional powers or mandate to
deal with local governments
It does have some functional powers – for example, over seas, coasts and inland fisheries
(s.91(12); over canals, harbours, rivers and lake improvements (s.108)
It also has conceptual powers, e.g. s.91 – “peace, order and good government”
o This could support initiatives to do with global warming and other aspects of
o This section justifies federal legislation to deal with things of national
Constitutional powers are also given to provinces
o Generally, all matters of a merely local or private nature in the provinces (s.92(6))
o Municipal institutions in the province (s.92(8))
o Property and civil rights in the province (s.92(13)
o Control and ownership of non-renewable natural resources, forestry and electrical
Note that provincial powers are primarily fiscal – funding for various initiatives, e.g. the
expansion of the TTC
The federal government is able to distribute money through re-distribution payments and
ad hoc payments
Provincial governments can enter into agreements with municipalities to do certain
things, but municipalities also have authority under the Municipal Act to enter into
agreements with the Federal government.
National policies can have an impact on planning and municipalities, for example
consider immigration‟s effect on planning (quote from Stephane Dion)
o “While it is clear that the federal government has no role to play in municipal
affairs, and that it is not its place to decide on the specific roles, powers or
organization of municipal governments, it is equally clear that the federal
government's activities in the areas of the economy, immigration, foreign affairs,
employment and so on have a profound impact on our cities and towns.”
o Essentially: the federal immigration policy, by setting a quota on immigrant
levels, creates sprawl in the absence of planning controls.
o Federal policy can influence land use planning in many ways, e.g. mortgage rates
and interest rates can affect housing.
Note that municipalities get only a small share of revenue as the tax base consists only of
property taxes, and so they require financial handouts and transfers from the federal and
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The City Municipality
It is necessary to consider some conceptual issues when dealing with municipalities:
o What is local government?
o How do local governments relate to federal and provincial governments?
o What are the objectives, role and direction of local governments with regards to
o Where did the current structures come from?
The Municipal Act, 2001 defines a municipality as a “locality the inhabitants of which
The Planning Act defines a municipality as a “local municipality, a county and a
regional, metropolitan or district municipality”
o This demonstrates that there are different types of municipalities
o A “local municipality” means a city, town, village or township
In Ontario, there are three types of municipalities:
1) Lower tier municipalities, e.g. townships, cities and villages, e.g. the Town of
2) Upper tier municipalities, e.g. regional and counties such as the Regional
Municipality of York
3) Single tier municipalities, e.g. the City of Toronto
Note that some parts of Ontario have no municipalities, such as rural or unoccupied areas
There is also no municipality of these types in Indian reserves, which are governed under
the Indian Act
o Note, however, that a municipality may enter into an agreement with a First
Nation to provide a municipal system within the limits of the reserve occupied by
the First Nation, whether the reserve is in a municipality or not under s.21 of the
There are currently 445 municipalities in Ontario, which is a greatly-reduced number
than in the 1990s (the era of amalgamation)
s.2 of the Municipal Act, 2001 deals with the purposes of municipalities – they are
created by the province of Ontario to be responsible and accountable governments with
respect to matters under their jurisdiction and each municipality is given powers and
duties under the Municipal Act
Under s.130, a “municipality may regulate matters not specifically provided for by
this Act or any Act for purposes related to the health, safety and well-being of the
inhabitants of the municipality”.
o This is known as the “general welfare powers”
History of Local Government in Toronto –
1. Incorporation of the City of Toronto on 6 March 1834
2. Metropolitan Toronto Act, April 1953
3. The 13 municipalities of Toronto area reduced to 6 in January 1967
4. City of Toronto Act, 1997 (more amalgamations)
5. City of Toronto Act, 2006 (more powers)
- 24 -
The Three Municipal Eras in Ontario
1) Traditional County System under the Baldwin Act of 1847, consisting of small-scale
local governments, small-scale both spatially and in terms of responsibilities
2) Regional system – shift towards regionalization and regional levels of municipal
government, but still have the small local lower-tier governments, e.g. Metropolitan
Toronto in 1953
3) Amalgamation beginning in the 1980s in Ontario – reduction in the number of
municipalities; happened in Toronto, Montreal, Halifax
The articles by Andrew Sancton and Gerald Frug help us understand the rationale for
regionalization and amalgamation, and why one might be better over the other.
Note that the changes in the structure of municipalities have been politically contentious;
in Ontario, the politics of municipalities has not been about their powers, but about their
structure and size.
Phase 1: The Baldwin Act of 1847
This enunciated a number of important principles of municipal governments that still, to a
large extent, carry over onto today
There were four important principles in this Act:
1. Principle of Municipal Subordination
Municipalities may only do what they are expressly empowered to do
They must do what the province tells them to do.
Municipalities can be created or terminated at the will of the province.
This can be contrasted to the inherent sovereignty recognized for Aboriginal
lands, whereas municipalities have only delegated powers
2. Principle of Local Autonomy
Local communities should enjoy a high degree of control over local matters.
Province should not tell municipalities what kind of decisions to make and
when to make them – they should respect the autonomy of municipalities and
give them the freedom to govern
Thus, although municipalities are subordinate to the province, they are still
given a certain amount of autonomy over local matters, outside the purview of
3. Principle of Graduated Powers
Powers of municipalities are allocated in a hierarchical fashion
Powers may vary depending on the size and character of the
4. Accountability to Property Interests
This principle is that, via taxes that are collected from property owners,
municipalities have an accountability to those property owners
Thus, municipalities are accountable upwards to the province, and downwards
to individual property-owners
Until 1958, people who did not own property could not vote in a municipal
election, so this accountability has changed somewhat over time – now you
simply need to be a resident of a municipality in order to vote in local
- 25 -
These “Baldwin Principles” permeate a number of the cases, e.g. Shell Canada Products
Ltd. v. Vancouver (1994) (SCC)
o In this case, the SCC considered the tension between these principles as a
reference to how much weight should be given to the fact that a municipal council
is elected, etc
o Sopinka, in contrast, looked at the express powers given by the province and
examined the tension between the four factors.
Municipalities often act outside of their jurisdiction – and they frequently get away with
it because no one challenges them.
Richardson thinks that there has been a shift from subordination to the province to local
autonomy as a governing principle for the behaviour of municipalities
o There are a number of reasons why autonomy has been favoured:
Growth of democracy as a value in our society since Baldwin Act enacted
– view that residents should be able to decide on issues that affect their
quality of life, and democracy important to educate and train future
leaders, and democracy is a form of civic education that helps to create a
more educated and informed society
Democracy values more now than in 1847
Helps to defuse governmental power – helps to divide and fragment
political power, because when political power is concentrated it can lead
to abuse of that power, e.g. corruption, dictatorships, etc.
Economically efficient – government that is closer to where services need
to be provided is more likely to be efficient in delivering those services,
e.g. more likely to understand where garbage collection needed and where
Phase 2: Regionalization
Between 1964 and 1974, a large number of regional municipalities were established in
Ontario, e.g. Metropolitan Toronto was a regional municipality sitting over the top of
The force behind this regionalization was the idea that this strategy would be conducive
to promote and manage growth
o Intended to connect people in sprawling areas with people who work in the
A view of planning emerged with cities having two areas – one for production and one
o The core was the area of production, e.g. offices, factories, hospitals
o The area of consumption was the sprawl/suburban areas
o Regional municipalities were created to integrate these two areas
The intention was to integrate cities into the surrounding areas; i.e. that there was a wider
area that needed to be planned and managed
- 26 -
Regional system distributes costs and benefits of growth within a larger system, between
haves and have-nots or developed and underdeveloped areas – there is a greater spatial
capacity to redistribute shared costs and benefits
o Further, regional highway systems needed regional municipalities to plan,
coordinate and fund them
There was a period of hesitation in the 1970s when this became unpopular and was
abandoned, and instead incremental boundary adjustments were used.
Critiques of Regionalization
Reduced accountability – the scale of government was too big, and the local government
was no longer local.
o Citizens no longer had an ability to informally see their councillor
There was thus less responsiveness to local needs and issues – the “growth of bloated
There were reduced opportunities for participation – the bigger the scale of government;
the harder it is to have meaningful participation.
o Instead, there was only representative participation by elected officials.
Power shifted from elected councillors to professional bureaucrats, e.g. engineers,
lawyers and architects
Phase 3: Amalgamation
This phase was marked by reforms in local government
o Municipalities were re-structured, primarily through amalgamation
Municipal powers were also re-structured through “downloading”
This phase also marked the development of the Greater Toronto Services Board – the
GTSB, later to become Go Transit
o This was intended to accommodate all the different municipalities in the GTA,
and was comprised of municipal mayors and some local councillors
o Purpose was to try and coordinate decision-making in the region; but in 2001 the
province found that this model did not work, and instead created Go Transit as an
The rise and fall of the GTSB and its reincarnation as Go Transit shows the trend that
there must be a more concentrated effort towards amalgamating and reducing the number
of councils, municipalities and politicians
Note that the GTA is home to 5 million people, with 2.5 million living in Toronto proper
– this makes up 43% of Ontario‟s population, and accounts for much of Canada‟s GDP
The idea behind amalgamation is that the GTA needs to be seen as a cohesive regional
economic entity in order to plan for growth and development, and to take advantage of
economies of scale
In order to achieve this, the Harris government started to force municipalities to merge –
this happened in Ottawa, Hull, Montreal, Quebec City, Hamilton and Toronto
- 27 -
o There were various political goals behind reducing the number of municipalities –
lower property taxes, clearer lines of responsibility, improved service delivery,
reduced bureaucracy, etc.
o Richardson says that improved responsiveness, accountability and democracy
were not objectives of amalgamation
This can be described as “merger mania” and since the mid-1990s, expansion of urban
areas and the changes in the relative responsibilities of local and provincial governments
has resulted in a massive wave of municipal mergers
o As a result, the number of municipalities was reduced by more than 40% between
1996 and 2003 (went from 815 to 446)
Part of the Harris agenda was also to download responsibilities onto municipalities.
o “Downloading” = province simultaneously off-loaded responsibilities and curbed
autonomy, which limits the scope and promise of decentralised power
o Promised to upload responsibilities, but never did this.
o The downloading occurred substantially in social services, and municipalities did
not have the resources necessary to pay for this.
o McGuinty has now said they are going to re-upload some of these responsibilities
over a period of years.
Shell Canada Products Ltd. v. Vancouver (1994) (SCC)
Note that McLachlin‟s dissent reflects the modern law better than Sopinka‟s majority
This case illustrates the role of municipalities as global actors – Vancouver was trying to
make a statement about Apartheid in South Africa
Facts: City of Vancouver sought to declare the City a “Shell-Free Zone” until Shell got out of
South Africa, since Shell was exporting fuel products to South Africa via Vancouver‟s
port. City continued to buy fuel from Chevron Canada, which did business in South
Africa through a subsidiary firm. Shell was annoyed at being made a signal for this
campaign and the effect it was having on its reputation, and challenged the municipality‟s
decision, arguing that the decision was unlawful and was made for a purpose beyond the
power of the municipality. In essence, this case involves judicial review of the legality of
the process in which Vancouver was making preferential purchasing policies, in
boycotting Shell‟s products – the Court was not looking at morality or public policy,
simply at the legality of that decision.
Issue: Was the preferential purchasing policy within the municipality‟s jurisdiction?
Decision: Shell‟s appeal allowed; decision out of municipal jurisdiction.
- 28 -
Reasons: Majority looked at the question of whether there is an implied power in the statute that
allows the municipality to apply a fuel boycott by discriminating against a particular firm.
They did not look at reasonableness, only authority. References the Greenbaum case
from 1993, which stated that municipalities are entirely the creatures of provincial
statutes and can exercise only those powers explicitly conferred upon them by provincial
statute. Looked also at R v. Sharma, in which the SCC had re-enunciated Dillion‟s Rule.
Stated that it is important that councils act clearly within their statutory powers, because
if there is no judicial review then some ratepayers would not have an effective remedy.
When dealing with powers that are not expressly conferred, it is necessary to look at
whether they can be implied. In deciding what is implied, there are a number of things to
look at – the purpose of the enabling statute, territorial limit of a council‟s powers (s.19
of Municipal Act in Ontario) and precedent. In looking at whether the discrimination
against Shell is expressly or implicitly authorized by the statute, Sopinka reviews various
sections of Vancouver‟s charter, and decided that he cannot find anything to support this
discrimination. Sopinka allowed appeal. Did not consider Charter issues as did not need
to as appeal already allowed on other grounds.
Dissent: McLachlin‟s judgment better shows the position that prevails today, after 14 years. She
looks at whether the judicial review is appropriate and available here, noting that there
are some precedents that state that purchasing decisions of municipalities are immune
from judicial review. States that it would be inappropriate to characterize purchasing
decision as private law beyond judicial review. McLachlin then looks at what the
appropriate scope for judicial review is, pointing out 2 options: the first is a narrow
construction of municipal powers, i.e. courts should take a conservative position and keep
municipalities on a short leash, interpreting ambiguous provisions against the
municipality; 2nd approach is a benevolent construction, meaning that the courts should
review the acts of municipalities in a generous way, not hampered by a narrow, technical
construction of their statutory authority, i.e. judicial intervention should only happen in
cases where there is something manifestly unreasonable or beyond the power of the
municipality. McLachlin advocated the second, broader approach – judges should be
careful not to substitute their own views over the views of a community. This would
keep municipalities from wasting time worrying about all their decisions being
scrutinized and challenged – is more efficient. McLachlin dismissed the Charter
argument made by Shell. Stated that welfare can include psychological welfare, e.g.
morals, identity, pride. Notes that discrimination by municipalities is not forbidden –
done on a daily basis in determine who to give licenses to, etc.
- 29 -
In modern Ontario, s.8 of the Municipal Act tells us that McLachlin‟s second approach
should be applied.
McLachlin‟s dissent in Shell provides a good framework for issues of municipal
The more recent case of Nanaimo City (2000) (SCC) demonstrates the evolution in the
jurisprudence since Shell – it addresses the validity of council resolutions that declared
a pile of dirt a nuisance and required a company to clean and remove it.
o City Charter gave council power declare something nuisance and order removal.
o SCC in this case stated that the Court must respect the responsibility of elected
municipal bodies to serve people who have elected them, and exercise caution in
substituting their views for the views of the council – note, this is essentially re-
iterating McLachlin‟s view of the broad approach to municipal powers in Shell
o The SCC also stressed need to take a benevolent construction of municipal
Where we are dealing with powers not expressly conferred, one must examine whether
such powers can be implied. To do so, look to:
the purpose of enabling statutes
o though it is a stretch to imply that „good government‟ includes such a
territorial limits of council‟s powers
o while a council could have regard for matters beyond its boundaries, it must
do so for the benefit of its people
o s. 130 outlines power to engage in business undertakings; however, this must
be construed in light of the limitations in the purpose as a whole
- 30 -
Andrew Sancton – “Why Municipal Amalgamations? Halifax, Toronto and Montreal”
Article explores motivations and reasons behind municipal mergers and whether are valid
One reason for amalgamation could be that provinces were acting autonomously, i.e. not actually
responding to any business or societal pressure
Municipal structures may have needed to be changed to meet new realities and changing
It is a possibility that these amalgamations happened because the provinces wanted to be seen to
be taking dramatic action, e.g. as under the Harris government‟s actions to get rid of excess
There is also the possibility of globalization pressure – municipalities needed to be amalgamated
so as to effectively participate in the new global marketplace
The whole saga of amalgamation is important because it is concrete evidence of the first
principle of the Baldwin Act – local subordination
o The province tells the municipalities what to do, and they have to do it.
Sancton‟s position on size and structure is that municipal amalgamations undermine both
efficiency and the ideal of legal democracy.
o Note that this differs from Frug‟s opinion, below.
Sancton then goes on to say that this fragmentation, having lots of small municipalities, is
justified by market principles, because it creates competition among municipalities for jobs,
businesses, people – and this is a good thing.
Gerald Frug – “The Geography of Community”
“Fragmented competitiveness” has divided devastated cities, by dispersing and dividing people
along class and ethnic lines.
The decline of American „central cities‟ has been the direct result of the zoning and
redevelopment authority or municipalities
o This disperses and divides people.
o People‟s decisions on where to work and where to live is a product of the municipal
policies, especially zoning, planning, etc.
Frug argues that the scale of municipalities should not be fragmented into lots of small
municipalities, but rather should create large municipalities, because smaller municipalities lead
to increased decline.
“Community Building” is the “being together of strangers”, and entails some common problems
and interest – but not necessarily shared final ends.
Frug advocates “new urbanism” – i.e., thinks we should build “neighbourhoods” rather than
o This can be accomplished by combining housing with parks and schools, placed within
walking distance of shops, services, jobs and transit.
Frug thinks that regional governments are advantageous because small-scale governments are
credited with creating ghettos and divisions among people, causing “haves” and “have nots”
Cities are becoming integrated into a global world, helping us to re-think that relationship
between municipalities and provincial and federal governments
o Richardson thinks trend will augment power of municipalities, not detract from it
Where Sancton advocates choice, Frug is in favour of amalgamations because it counteracts
fragmentation: where there are small fragmented municipalities, policies of discrimination are adopted to
exclude certain people. The urban landscape, he argues, is not simply a matter of individual choice, but it
is a product of government policies, in particular: planning, zoning and boundaries between cities.
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Yishai Blank – “Localism in the New Global Order”
This article differentiates a number of themes.
Municipalities are beginning to have to pay attention to international legal and policy
developments, e.g. the action by Toronto to address global warming/climate change
o However, one has to be careful with that proposition, as municipalities remain
trapped in their status of delegated authority – they are obviously not fully-
fledged international legal players.
Municipalities are, however, becoming the object of international regulation, e.g. some
international institutions are seeking to regulate localities and their legal relation with
o The best example of this is the EU – subsidiarity principle in the governing
document, which is a normative principle for thinking about this relationship
i.e. government regulation and services should be provided at the lowest
possible level of government because localities are closer to the people
who will feel the effects of the regulation, and there is a greater chance for
meaningful democratic participation
Localities are becoming instruments to enforce international laws and standards – for
example, in the USA, municipalities have pension funds that have adopted by-laws that
prohibits investment in countries like Sudan or Iran in order to enforce the position of the
o Consider the Spraytech case, where the SCC said that municipalities are able to
enforce international environmental law in the form of the precautionary
principle, which requires a more cautious approach to dealing with environmental
The 4 theme in this article is that municipalities are forming global networks to help
enforce international norms – helps to generate them, articulate and evolve these norms
o The “World Association of Cities and Local Authorities” is trying to develop a
world charter for local municipalities
The Local Environmental Initiative excerpt from Local 21 Standards provides an
example of how municipalities are networking globally to try and develop standards for
sustainability in a local context
o Standards are developed globally, through this network.
Economic efficiency, advantages of delegated control, more direct and accountable
democracy, normative mediation between communities and governments are all
indicators/advantages of localities.
Thus, there are 2 competing views of the “Global City”
o First is that capital holds local governments to ransom, and thus cities have lost
their capacity to govern effectively.
o Second is that powerful „city states‟ have rendered national and provincial levels
of government irrelevant.
Neither thesis is correct, but there are arguments to be made for both.
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Municipal Jurisdiction and the Common Law – Dillon’s Rule
Because the municipality is an artificial legal entity, it may only do certain things within
Dillon‟s Rule, 1906
It is a general and undisputed proposition of law that a municipal corporation
possesses and can exercise the following powers and no others:
(1) those granted in express words;
(2) those necessarily or fairly implied in or incident to the powers expressly
(3) those essential to the declared objects and purposes of the corporation – not
simply convenient, but indispensable. Any fair reasonable doubt concerning
the existence of power is resolved by the courts against the city and the power
Following Dillon‟s Rule, the common law limits the powers of municipalities to:
1. express grants of power
a. explicit statements in the statute
2. powers that are necessarily/fairly implied or incidental to powers expressly granted
a. laws that would be unworkable if cities were not able to impute additional kinds
of powers (for example, imposition of fines)
3. powers that are essential to the objects/purposes of the municipality
a. moving away from specific to general purpose; statute might declare certain
b. Statute might declare certain objects, if not look to intention (e.g. Parliamentary
Dillon‟s Rule was reaffirmed by the SCC in R v. Greenbaum:
“municipalities are entirely creatures of provincial statutes. Accordingly, they can exercise
only those powers which are explicitly conferred upon them by provincial statute.”
Ways to Get Around Dillon‟s Rule –
o by saying a municipality is a natural person: where there is a natural person provision,
the City can do what it wants subject to statutory restrictions (i.e. enter into contracts)
o couch municipal powers broadly: wide-ranging powers (i.e.” improve environmental
well-being of Toronto”)
o interpretation provisions in the Act (i.e. „in the event of ambiguity‟; interpreted
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The question the BCCA had to deal with in Denman Island Local Trust Committee was
whether certain provisions of the Local Government Act provided the local trust committee with
the power to enact by-laws regulating the cutting of trees on the respondent‟s land. The
provisions in question stipulated that community plans were able to designate some lands for
preservation of the natural environment and that development permits may be required.
The court found that the local trust did not have capacity to enact those by-laws because in doing
so, it impinged upon a common law right of profit a prendre. With regards to the interaction
between the common law and legislation, Parliament can abrogate common law rights;
however it must do so expressly. If the provincial governments wanted to give to municipalities
the ability to abrogate these rights, the legislation would have expressly provided for it. Because
it does not, the by-laws are ultra vires.
Recall that municipal powers cannot exceed those granted to it by the province. The legal
argument in Robertson et. al. v. City of Edmonton was that council failed to account for relevant
consideration (such as environmental impacts) in passing by-laws. In administrative law, this is
known as a jurisdictional error, that it is not a case of a city acting beyond its power, but rather
a case of failure to have regard to something it should have turned its attention to.
The court agreed noting that the structure plan „shall‟ contain any other matters the council
considers necessary. The judge reasoned that although the board of health is charged with
looking into public health issues, this does not obviate council to take into consideration
environmental impact. So, although there might be a relationship between a municipality
and a provincial regulatory regime, this cannot excuse municipalities from fulfilling their
own responsibilities under their own planning/municipal laws.
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The Municipal Act – Powers of Municipalities
2. Municipalities are created by the Province of Ontario to be responsible and accountable
governments with respect to matters within their jurisdiction and each municipality is given powers and
duties under this Act and many other Acts for the purpose of providing good government with respect to
3. (1) The Province of Ontario endorses the principle of ongoing consultation between the
Province and municipalities in relation to matters of mutual interest and, consistent with this principle, the
Province shall consult with municipalities in accordance with a memorandum of understanding entered
into between the Province and the Association of Municipalities of Ontario
province starting to elevate municipalities – a partner – moving away from delegated model
and recognizing importance of municipalities
Agreements with the federal government
3.1 The Province acknowledges that a municipality has the authority to enter into agreements
with the Crown in right of Canada with respect to matters within the municipality‟s jurisdiction.
not simply a „creature of the province‟ but also a body that can talk directly to the federal
government, or enter into contracts with them.
Powers exercised by by-law
5 (3) A municipal power, including a municipality‟s capacity, rights, powers and privileges
under section 9, shall be exercised by by-law unless the municipality is specifically authorized to do
Application re City of Toronto
7.1 (1) This Act does not apply to any of the following, except as otherwise provided by another
provision of this Act or of the City of Toronto Act, 2006:
1. The City of Toronto, a local board of the City (including a joint local board of the City)
or a city corporation
Toronto is governed by the City of Toronto Act
The MA does not apply to Toronto unless expressly provided for in either Act.
Section 8: Jurisdiction: 8(1), 8(2), 15
softening the impact of Dylan‟s rule: municipality friendly interpretation
Scope of powers
8. (1) The powers of a municipality under this or any other Act shall be interpreted broadly so as to
confer broad authority on the municipality to enable the municipality to govern its affairs as it considers
appropriate and to enhance the municipality‟s ability to respond to municipal issues.
if there‟s a dispute about jurisdiction, broad interpretation of authority
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(2) In the event of ambiguity in whether or not a municipality has the authority under this or any
other Act to pass a by-law or to take any other action, the ambiguity shall be resolved so as to include,
rather than exclude, powers the municipality had on the day before this Act came into force.
If there‟s an exam Q: does the municipality have jurisdiction? start with the 2 premises
Scope of by-law making power
(3) Without limiting the generality of subsections (1) and (2), a by-law under sections 10 and 11
respecting a matter may,
(a) regulate or prohibit respecting the matter;
(b) require persons to do things respecting the matter;
(c) provide for a system of licences respecting the matter.
Scope of by-laws generally
(4) Without limiting the generality of subsections (1), (2) and (3) and except as otherwise
provided, a by-law under this Act may be general or specific in its application and may differentiate in
any way and on any basis a municipality considers appropriate.
by-law can be general/specific
(5) Subsection (4) does not apply with respect to a by-law made under Parts VII, VIII, IX, X, XI
can‟t breach human rights laws
Powers of a natural person
9. A municipality has the capacity, rights, powers and privileges of a natural person for the
purpose of exercising its authority under this or any other Act.
Note that this is another way of responding to Dillon‟s Rule.
SS 10-11 address substantive jurisdiction
s. 10: single tier
s. 11: upper/lower tier
o problem: can‟t have a single list, you need to split them
Broad authority, single-tier municipalities
10. (1) A single-tier municipality may provide any service or thing that the municipality
considers necessary or desirable for the public
(2) A single-tier municipality may pass by-laws respecting the following matters:
1. Governance structure of the municipality and its local boards.
2. Accountability and transparency of the municipality and its operations and of its local boards and
3. Financial management of the municipality and its local boards.
4. Public assets of the municipality acquired for the purpose of exercising its authority under this or
any other Act.
5. Economic, social and environmental well-being of the municipality.
6. Health, safety and well-being of persons.
7. Services and things that the municipality is authorized to provide under subsection (1). - continued
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8. Protection of persons and property, including consumer protection.
10. Structures, including fences and signs.
11. Business licensing.
By-laws re: matters within spheres of jurisdiction
11 (3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the
rules set out in subsection (4), respecting matters within the following spheres of jurisdiction:
1. Highways, including parking and traffic on highways.
2. Transportation systems, other than highways.
3. Waste management.
4. Public utilities.
5. Culture, parks, recreation and heritage.
6. Drainage and flood control, except storm sewers.
7. Structures, including fences and signs.
8. Parking, except on highways.
10. Economic development services.
11. Business licensing.
subject to a „table‟ that carves it out‟
list having an element of precision
o broad jurisdictional capacities
o subject to „carve up‟ tables
rules found in 11(4)
why aren‟t these the same?
o if you‟re going to carve up the jurisdiction, you‟ve got to be precise about what
Broad authority, single-tier municipalities
10. (1) A single-tier municipality may provide any service or thing that the municipality
considers necessary or desirable for the public
note that a similar phrase is not found in s. 11
broad substantive jurisdiction
province compelled to differentiate this jurisdiction where there are 2 tiers
What is limiting overall structure of jurisdiction?
money: it‟s all well and good to have powers to do something, but it doesn‟t necessarily
provide for the ability to raise funds
s. 10(1): may – they don‟t have to do these things
o no must, shall
s. 11(3): again „may‟
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13.1 (1) A by-law of a lower-tier or upper-tier municipality under subsection 11 (1) or (2) is
inoperative to the extent it frustrates an integral part of a system of its upper-tier municipality or lower-
tier municipality, as the case may be, authorized by by-law under subsection 11 (1) or (2). 2006, c. 32,
Sched. A, s. 9.
(2) For the purpose of subsection (1), if a municipality has the power to pass a by-law under subsection
11 (1) or (2) and also under any other provision of this or any other Act, the by-law is deemed not to have
been passed under subsection 11 (1) or (2). 2006, c. 32, Sched. A, s. 9.
Conflict between by-law and statutes, etc.
14. (1) A by-law is without effect to the extent of any conflict with,
(a) a provincial or federal Act or a regulation made under such an Act; or
(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a
provincial or federal Act or regulation. 2001, c. 25, s. 14.
(2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a
municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the
purpose of the Act, regulation or instrument.
Limited to municipal boundaries
19. (1) By-laws and resolutions of a municipality apply only within its boundaries, except as
provided in subsection (2) or in any other provisions of this or any other Act.
Agreements with First Nation
21. (1) A municipality may enter into an agreement with a First Nation to provide a municipal
system within the limits of the reserve occupied by the First Nation, whether the reserve is within the
municipality or not.
Agreements respecting private services
23. A municipality may enter into an agreement with any person to construct, maintain and
operate a private road or a private water or sewage works, including fire hydrants.
power to delegate
ss.188-193 contains processes that municipalities can use to transfer authority from one tier
Thus, despite the table, tiers can “come to a deal” on responsibilities
Note that there are other pieces of legislation that provide the basis for municipality‟s
legislative capacity. There are 80 statutes containing powers important to municipalities,
o Fire prevention
o police services
o building code act
o Ontario works act
o planning act
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Scope of Powers – s.8 (Jurisdiction)
This section provides importance guideance for questions of jurisdiction.
(1) provides that the powers of a municipality shall be interpreted broadly so as
to confer broad authority on the municipality to enable the municipality to
govern its affairs as it considers appropriate and to enhance the
municipality‟s ability to respond to municipal issues
(2) where there is ambiguity in whether or not the municipality has authority to
pass a by-law or to take any another action, it shall be resolved so as to
include, rather than exclude, powers the municipality had on the day before
this Act came into force
(3) on the scope of by-law making power, cities can make by-laws under ss. 10
and 11 to
(a) regulate or prohibit respecting a matter
(b) require persons to do things respecting a matter
(c) provide for a system of licences respecting a matter
(4) scope of by-laws generally: a by-law may be general or specific in its
application and may differentiate in any way and on any basis a municipality
considers appropriate (however, per  it cannot breach human rights laws,
Underr s.9, a municipality has the capacity, rights, powers and privileges of a natural
person for the purpose of exercising its authority under this or any other Act
o This comprises another way of responding to Dillon‟s Rule.
ss. 10-11 address substantive jurisdiction
limits to overall structure of jurisdiction: money
o ss. 10-11 are permissive in nature; do not compel municipalities to do anything
o while it is all well and good to have these substantive powers, without the ability
to raise funds to provide for these programs, it is useless
*Next Page – Authority of Single/Upper/Lower Tier Municpalities*
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Broad Authority: Single-Tier Municipalities: s. 10
(1) a single-tier municipality may provide any service or thing that the municipality
considers necessary or desirable for the public [note, this is missing from s. 11]
(2) a single-tier municipality may pass by-laws respecting the following matters:
1. Governance structure of the municipality and its local boards.
2. Accountability and transparency of the municipality and its operations and of its
local boards and their operations.
3. Financial management of the municipality and its local boards.
4. Public assets of the municipality acquired for the purpose of exercising its
authority under this or any other Act.
5. Economic, social and environmental well-being of the municipality.
6. Health, safety and well-being of persons.
7. Services and things that the municipality is authorized to provide under
8. Protection of persons and property, including consumer protection.
10. Structures, including fences and signs.
11. Business licensing.
Carving It Up: Upper and Lower-Tier Municipalities: s. 11
(3) provides that a lower-tier municipality and an upper-tier municipality may pass by-
laws, subject to the rules set out in (4), respecting matters within following…
1. Highways, including parking and traffic on highways.
2. Transportation systems, other than highways.
3. Waste management.
4. Public utilities.
5. Culture, parks, recreation and heritage.
6. Drainage and flood control, except storm sewers.
7. Structures, including fences and signs.
8. Parking, except on highways.
10. Economic development services.
11. Business licensing.
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Inoperative By-Laws – Upper and Lower Tier Municipalities: s. 13
(1) provides that by-laws of a lower-tier or upper-tier municipality under subsection 11 (1)
or (2) must respect the integrity of the upper/lower tier municipal system, to the extent
that it does not do so, it is inoperative.
(2) where there are overlapping powers, if a municipality has the power to pass a by-law
under s. 11 and also under another provision of this or any other Act, the by-law is
deemed not to have been passed under s. 11.
Conflicts with Statutes: s. 14
(1) a by-law is without effect to the extent of any conflict with
(a) a provincial/federal Act or a regulation under such an Act; or
(b) an instrument of a legislative nature, including an order, licence or approval, made or
issued under a provincial or federal Act or regulation
(2) there is a conflict between a by-law of a municipality and an Act etc., if the by-law
frustrates the purpose of the Act, regulation or instrument
The OCA decision in Superior Propane concerns by-laws enacted by the City of York which
regulated propane storage and dispensing facilities. The Energy Act also had a comprehensive
scheme regulating the same. SP applied for a declaration that York by-laws were ultra vires on
the grounds that they conflicted with the provincial EA, arguing that that Act is really
comprehensive, containing a detailed scheme to regulate propane facilities. As such, York‟s by-
laws are in conflict and therefore under the MA they are ultra vires.
The lower court held that the by-laws were valid, that they enhanced the provisions of the EA,
not conflicting with it but making it work even better.
On appeal, the OCA disagreed finding a conflict between the by-laws and the provincial statute.
The court looked to the precedent of AG v. Mississauga for 3 reasons why the by-law must fail
1. there is an operative conflict between the EA and the by-law: the by-law has the effect of
negating or undermining provisions dealing with height, size, setbacks and protection
2. doubts regarding fundamental jurisdiction: municipal authority is related to land use
planning and not to propane tank size
3. even if the by-law does relate to land use planning, there then would be no reasonable
basis for regarding it as enhancing a law enacted for a different purpose
Limited to Municipal Boundaries: s. 19
(1) geographical component: by-laws and resolutions of a municipality apply only
within its boundaries, except as provided in any other provisions of this or any
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Courts play a crucial role in the balance between the Baldwin Principles of autonomy and
The role of courts in determining municipal powers is crucial – for example, see Shell
Courts help to tilt the balance between municipalities, individuals, the province and other
They settle disputes, particularly those that involve the law
Courts give authoritative ruling on the meaning of legal texts and sources, and the
application of legal texts and sources to specific conflicts
Courts not only interpret the law, they help to develop the law
Courts should be careful about substituting their own views for the views of the
municipality – especially since Courts are unelected officials
Through precedent, the authoritative rulings of courts function as guidance for further
R v. Greenbaum (1993) (SCC)
This case looks at express powers, and how the court interprets those express powers
This case also considers the relationship between specific and general powers in the
o Looks at the „express authority doctrine‟ and the efficacy of a general grant of
Note that R v. Sharma was a sister-case to this one, with similar facts, but in that case the
SCC was focusing on the issue of discrimination, which is not at issue in this case.
Facts: Dude sells t-shirts at Yonge & Bloor. Got fined for unlawfully exposing goods on a
Metro road allowance without lawful authority, contrary to a by-law. Needed a license;
licenses only given to owners/occupiers of property abutting sidewalk. In District Court,
judge though bylaw was supported by s.140 of Municipal Act (i.e. preventing nuisance)
and found that by-laws should be interpreted generously and not
unreasonable/discriminatory to deny licenses to people who do not own abutting
property. At OCA, judge held that municipality had a legitimate public interest in
keeping sidewalks unobstructed and again found that distinction was reasonable. Note
that dissent of Arbour at OCA held that powers do not allow for discriminatory by-laws
unless legislation specifically allows for the discrimination, and she would have held the
by-law ultra vires on that basis.
Issue: Did the municipality have to authority to enact such a by-law?
Decision: Appeal allowed; conviction set aside and acquittal entered.
Reasons: Began with looking at Dillon‟s Rule and requirement for express authority. Cited 2
sources of law – Interpretation Act, and Hamilton v. Hamilton, which stood for a
benevolent construction of municipal authority. Judge that a strict interpretation of
powers was necessary in this case, because common law civil rights were at stake, but it
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is not entirely clear what he was referring to - “Municipal by-laws are to be read to fit
within the parameters of the empowering provincial statute where the by-laws are
susceptible to more than one interpretation. However, courts must be vigilant in ensuring
that municipalities do not impinge on the civil or common law rights of citizens …” City
argued that there were four sources that could be found to uphold the bylaw (express
powers; 3 specific and 1 general). First was s.210 (3) – power granted by province to
allow municipalities to prohibit sales near something, but SCC found that the purpose of
this section is not to regulate street vending and thus cannot rely on this as it is meant to
control vendors causing obstructions. Toronto next argued that s.210 (140), which allows
council to regulate or prohibit public nuisances. SCC says that they cannot rely on this as
the by-law regulates conduct that may not amount to a public nuisance. Toronto then
tried to rely on s.314 (1) (i), which allows council to prohibit or regulate people who
obstruct or foul highways or sidewalk; arguing that street vendors obstruct sidewalks
physically and visually. SCC also says that this cannot be relied upon, as sidewalks are
public locations for community interaction. Note that Richardson thinks the Iac is taking
a page out of J.J. – people walking around on the streets is important and makes a
strong/good community. This section also cannot support the by-law because the by-law
is too broad – it captures non-obstructive behaviors on a sidewalk as well, and is
draconian in scope. Finally, Toronto argued s.120, which is a general power which
enables municipalities to regulate for the health, safety, morals and welfare of the citizens
in its community. This is a general power, with broad authority. SCC found that the
province cannot encroach upon federal jurisdiction, and municipality cannot encroach
upon provincial jurisdiction. Thus, there are very few activities that could fall into this
residual, catch-all section because everything else was already regulated by the specific
powers contained in the Municipal Act, and the general grant of powers cannot be used
to authorize a by-law with a subject already addressed by specific provisions. The
by-law must conform to a specific power, and it fails to do so, the municipality cannot get
around this by using the general power, i.e. it is necessary to go to the parts of the
Municipal Act that deals with obstructions on sidewalks, instead of resorting to the
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Lessons and Impact of Greenbaum
The resource to a general grant of authority is limited, especially where a relevant
specific power exists.
The exercise of municipal power will not be open to a liberal interpretation in the large
volume of cases where civil or common law rights are affected.
It is unclear if the SCC would come to the same decision today, as there is no broad
authority under ss.10 and 11, which did not exist in 1993
Relationship between General and Specific Powers under the Municipal
s.15(1) If a municipality has power to pass a by-law under section 9, 10 or 11 and also
under a specific provision of this or any other Act, the power conferred by section 9, 10 or
11 is subject to any procedural requirements, including conditions, approvals and appeals,
that apply to the power and any limits on the power contained in the specific provision.
15(1.1) For the purpose of subsection (1) and, unless the context otherwise requires, the
fact that a specific provision is silent on whether or not a municipality has a particular
power shall not be interpreted as a limit on the power contained in the specific provision.
Thus, the Courts‟ interpretation of the powers of a municipality may give municipality more or
less decision-making authority – consider the cases of Shell, Spraytech and Greenbaum
135(1) Subject to subsection (4) and without limiting sections 9, 10 and 11, a local
municipality may prohibit or regulate the destruction or injuring of trees.
Energy conservation programs
147(1) Without limiting sections 9, 10 and 11, a municipality may provide, arrange for or
participate in an energy conservation program in the municipality to encourage the safe and
efficient use and conservation of all forms of energy including …
The current trend is towards expanding the parameters of municipal activity, and this is
shown through recent jurisprudence.
o Municipalities are beginning to use by-laws to enforce environmental objectives,
such as anti-pesticide by-laws.
o Note that in Spraytech, the City of Toronto successfully defended a by-law under
the same rationale.
Note that tension does not only exist between municipalities and the province, but also
between municipalities and individuals
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The Ontario Municipal Board
Note that while the headquarters of the OMB is in Toronto, it also moves around the
province to deal with additional hearings.
Members of the OMB are appointed by Cabinet, and may include lawyers, accountants,
planners, architects, etc.
o There are usually around 25 members.
Members can hold tenure for a number of years and then be re-appointed.
The OMB reports to the Ministry of Municipal Affairs and Housing.
There may sometimes be no right of appeal from an OMB decision, so it can be a very
It is governed by the Ontario Municipal Board Act – this provides both the constitution
and the enabling statute, and deals with membership, decision-making powers and
The OMB is not governed by precedent, but it can use its previous decisions to make
decisions, especially when dealing with good planning principles.
Other legislation sets out specific OMB powers, e.g. The Planning Act
OMB describes itself as an independent, quasi-judicial administrative tribunal, whose
primary function is to resolve appeals from decisions made by Ontario municipalities or
other decision-makers, either in pre-hearing procedures or by holding public hearings.
A municipality establishes policies for growth and development, formulates rules (by-
laws) and negotiates contracts (e.g. site plan agreements) about how land may be used.
The OMB hears and disposes of appeals from the planning decisions of municipalities.
Specific OMB Functions
Official Plan Appeals
o Person who requests an OP amendment may appeal if the council refuses to
adopted the requested amendment under s.22(7) to 22.(7.0.2)
o Can appeal decisions of the approval authority under s.17(36)
o Can appeal the approval‟s authority failure to decide under s.17(40)
o Note that some OP decisions of the municipality are exempt from requiring
approval, but can be appealed under s.17(24)
o Can object to a ZBL under s.34(19)
o Can appeal city council‟s refusal to amend zoning by-law within 120 days of
request under ss.34(11) & 36(3)
Site Plan Agreement
o Can appeal development control under s.41(12)
o Can also appeal demolition control permits under s.33(4) and subdivision
decisions under s.51(34), as well as various other regulatory activities
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OMB Power to Revisit Decisions
Under s.43 of the Ontario Municipal Board Act, the OMB may rehear any application
before deciding it, or may review, rescind, change, alter or vary any decision, approval or
order made by it.
o This power engenders a great deal of controversy.
o This power is controversial because it raises the question of whether the OMB‟s
decisions are open to outside influence – the discretion to re-hear matters or go
back and change their decisions raises the spectre of corruption and undue
There are two key powers granted under this section: the power to rehear a dispute before
making a decision; and the power for the OMB to change its decisions
This power to change its decisions is a wide discretionary power of review, and it is not
merely a “curative” power (Re Merrens and Municipality of Metropolitan Toronto,
o Note that this case dealt with the question of whether the OMB could re-hear an
approval for the Spadina subway that was given 15 years prior.
o Note that, what is meant is that the OMB can re-hear decisions not specifically to
cure a defect in the original decision, but rather, since this is a broad discretionary
power, they can re-hear decisions in light of good planning principles, to deal
with new evidence, changes in circumstances, etc.
The OMB may revisit its decisions when it is satisfied that, in the previous decision, it
“misinterpreted the planning evidence, or wrongly assessed the planning evidence,
or failed to apply good planning policy in the entire matter” (St. Catherines (City) v.
Faith Lutheran Social Services, Inc., 1991).
o Note that this narrows the permissible use of s.43
o There is a 30-day limit for a rehearing; however, there is no restriction on
time when there is new evidence
Some critics feel that this power undermines the need for certainty in decision-making.
o Richardson feels that this is “will be the OMB‟s demise”.
The chair of the OMB may initiate a review where the previous decision was based on a
mistaken belief that the OMB had the power to make the decision (i.e. jurisdiction issues)
The OMB is not required to give notice that it is contemplating rescission of a previous
decision if it plans to hold a fresh hearing.
o However, it must give full notice of the new hearing per Re Township of North
The OMB power to grant a new hearing must be exercised reasonably – “there must be
some reasonable apprehension that the previous hearing was defective” (Faith
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Effect of OMB Decisions – Finality and Review/Appeal
Under s.96(4) of the OMB Act – “save as provided in this section and in ss.45 & 95, (a)
every decision of the OMB is final, and (b) no order, decision or proceeding of the OMB
shall be questioned or reviewed…in any court.
However, there are some exceptions:
o s.96(1) of the OMB Act permits an appeal to the Divisional Court on questions of
o s.43 of the OMB Act provides for re-hearing and review by the OMB
o s.95 of the OMB Act deals with appeals, but is no longer relevant to land use
planning appeals – see instead, s.64 of the Planning Act - there is no right to file a
petition under that section in respect of any order or decision of the Municipal
Board made in respect of any matter referred or appealed to the Board under this
o s.94 deals with “case stated provision”, where the OMB asks the Divisional Court
for a statement on a legal issue prior to hearing a case.
Defining the Jurisdiction of the OMB
As a result of the decision in Re Township of North York (OCA, 1960), it was clear that the
OMB no longer has a general supervisory power over zoning by-laws.
Only has jurisdiction to hear certain appeals.
This represented a shift/downgrading of OMB powers.
In Equity Waste Management (OCA, 1997), there was an appeal to the OMB, but there was a
lengthy delay before the hearing, so the parties applied to the Court to quash a by-law for
In this case, the regional municipality of Halton Hills undertook a long-range study to
look at the urban corridor in question and determine what municipal services would be
needed and when. While this was going on, Equity wanted approved for a composting
facility located in the corridor, but there was opposition and the matter was deferred for
further consideration by council. Council‟s study concluded that the composting facility
would hamper plans for a “prestige industrial zone”, so they requisitioned a further study,
passed an interim control by-law, freezing development for a year, including of the
composting facility. The OMB was not able to hear the appeal for six months – so the
result would have been essentially the same, even if Equity had won. Thus, Equity went
directly to the Courts by putting in an application to have the by-law quashed for
illegality/improper purpose under s.273 of the Municipal Act. This application was
appealed by Halton Hills.
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The court held that s.35 of the OMB Act gives the OMB authority to hear and
determine all questions of law or of fact. Further noted that s.36of the OMB Act gives
the OMB some exclusive jurisdiction over matters referred to it. OCA held that
“determining the appropriate tribunal is a question of determining legislative intent….the
issue is whether the court or the OMB is best suited to decide the question in dispute”.
“The OMB is an expert planning tribunal and is obviously best-suited to decide the
planning issues raised by municipal by-laws. The courts, on the other hand, have
typically intervened when a municipal council did not adhere to fair procedures or
when it exceeded its statutory powers”
Thus, courts best suited deal issues like jurisdiction of municipality, illegal procedures
etc.; whereas the OMB is best suited to deal with issues involving planning principles.
o What about allegations of bad faith? It is clearly a legal issue under the
administrative law doctrine, but it also raise the question as to what planning
principle principles were followed/not followed, which is a planning matter. Thus
it raises both planning and legal issues.
o In this case, the Court concluded that the Municipality had acted in bad faith by
enacting the interim control by-law as it lacked a proper planning study to justify
it. Thus, the Court decided the purpose of the by-law was to protect councillors
facing election, and thus it was in bad faith, illegal, and the Municipality‟s appeal
Essentially, Court decided that it did have jurisdiction to hear the dispute,
and that the OMB and the Courts are at least equally placed to hear the
matters, but that there was an added issue in this case – urgency, as TOTE
Note that on appeal, the judge decided at the by-law was not passed in bad
faith, since there was public consultation, studies, etc. and thus upheld the
interim control by-law.
s.38(4) of the Planning Act gives the right to appeal IC by-laws to the OMB
s.273 of the Munipcal Act allows any person to apply to the Court to quash a by-law for
Toronto (City) v. Goldlist Properties (2003) (OCA)
Significance of this case is that the OMB, while primarily a planning body that looks at
planning merits, does have a role to play in looking at legal issues.
o s.35 of the OMB Act says that it does, and the Courts have agreed, even though it
does not have a general role in determining the legislative competence of
o As part of its planning role, the OMB can look at legal issues as they relate to
Facts: Toronto passed an OP amendment that was approved in 1999. In 1998, the province
made a change so that the Minister no longer needed to approve OP amendments. This
OP amendment established policies to maintain the supply of rental housing available in
the City of Toronto, restricting demolition of rental housing for condos unless the
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vacancy rate exceeded a certain threshold. In 1986, there was a statute called the Rental
Housing Protection Act, which imposed requirements for developers to get municipal
council approval for the demolition/conversion of rental housing. The Harris government
replaced this with the Tenant Protection Act, which abolished the tough requirements to
protect rental housing from demolition, and instead relied on market forces. Goldlist
wanted to demolish some rental housing for condos, and needed special permission to do
this. They brought a motion to attack the validity of the OP amendment and the by-law.
The thrust of Goldlist‟s argument was that Toronto did not have the jurisdiction to enact
planning rules on housing matters. Sought to have OMB strike down OP amendment.
Issue: What is the jurisdiction of the OMB to rule on the legality/validity of a municipal by-law?
Does the OMB have the jurisdiction to rule on the validity of a by-law, and to rule on the
authority of a municipality to include, in its OP, policies designed to ensure an adequate
supply of rental housing by stopping the destruction or conversion of rental housing into
Decision: OCA found that municipality has jurisdiction to enact policies on rental housing.
OMB Decision: OMB ruled that the OP amendment was invalid, giving Goldlist the green light
for its development. Quashed the OP amendment because the city had gone beyond its
power, attempting to impose rental housing policies that contravened the policy of the
provincial government. OMB also ruled that they had the jurisdiction to declare by-laws
invalid and rule on the competence of council to pass such by-laws.
Divisional Court: overturned the OMB‟s decision and upheld the validity of the OP amendment,
taking a narrow view of the OMB‟s jurisdiction. The role of the OMB is not a general
supervisory role meant to determine the legislative competence of municipalities, but
rather a narrow role to hear appeals and only consider questions of jurisdiction if it is an
incidental matter to another appeal. Found that council has jurisdiction to enact policies
on rental housing and found against the OMB‟s capacity to review the legislative
competence of a municipality. OMB has supervisory power over municipal planning
competence, not legislative competence.
Court of Appeal: overturned the divisional court on procedural issues, i.e. jurisdiction of OMB
on issue of law, but upheld the divisional court on the substantive issues – found that the
city has jurisdiction to enact by-laws to protect rental housing. Ruled that the OMB did
not have freestanding jurisdiction to consider issues of law. The OMB does not have a
wide-ranging broad discretion; rather, it has ample jurisdiction to consider a wide range
of adjunct or incidental matters to planning issues. Divisional court took too narrow
an interpretation of the OMB‟s jurisdiction. OCA also looked at the relationship between
a municipal by-law and a provincial statute, and where there might be a conflict (e.g.
Spraytech). OCA said that the OP amendment did not conflict with the provisions of the
Tenant Protect Act, because they looked at the legislative history of the TPA and could
not find an intention to take away the authority of municipalities to regulate rental
housing; and secondly the OCA said that a conflict rendering a by-law invalid can only
exist when to do what the municipality requires compels someone to do what the
provincial law forbids.
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Critiques of the Ontario Municipal Board
John Sewell, Former Mayor of Toronto
“Developers know they can usually override municipal councils by going to the OMB
and forcing a long and costly hearing. Official plans have no status at the
OMB….everything seems negotiable”
Theresa McClenaghan – CELA
“The board has become the centre of a very ad hoc process … The problem is the board
has to take each appeal as it comes. It‟s about a corner here and a swatch there, rather
than how it fits into a broad area like the Oak Ridges Moraine”
o Note this is similar to Greenburg‟s critique – OMB does not consider the overall
repercussions of their decisions, only makes piecemeal decisions.
Michael Walker – Councillor
“The Ontario Municipal Board has become more politicize and citizens perceive that
decisions are being made that benefit government friends in the development industry at
their and their neighbourhood‟s expense”.
Video – Ken Greenburg, Planning Consultant
Urban Planner – feels that the OMB is draining resources from good planning into
litigation and lawyer’s fees
Feels that the OMB has a pro-development bias
OMB has assumed the role of a quasi-planning board.
OMB should have a narrower mandate or be abolished.
Developers have more resources than community groups – disparity of resources in
disputes before the OMB
Has a problem with the ad hoc decisions of the OMB – feels that it does not plan, but
rather deals with ad hoc disputes that arise, and fails to deal with the „big picture‟, i.e. the
cumulative impacts of its decisions.
Questions the qualifications of OMB members – there is an uneven quality of decisions.
Compares OMB to the UK system, where appeals go directly to the Minister
In Defence of the OMB
Stanley Makuch, Planning Lawyer
“Review of decisions made by democratically elected bodies such as councils by
appointed tribunals such as the OMB is not „per se‟ undemocratic … Indeed; review by
such tribunals creates healthy tensions in government decision-making and is desirable”.
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OMB Reforms Designed to “Reign In” Its Power
The Strong Communities (Planning Amendment) Act
Hon Gerretsen, Minister of Municipal Affairs, 2003: “For too long, responsible planning
decisions by municipal councils have been overturned by the Ontario Municipal Board. It
had the effect of encouraging sprawl. It took decisions that should have been in the hands
of local councils and put them in the hands of an unelected, unaccountable board.”
Planning and Conservation Land Statute Law Amendment Act, 2005
Requires the OMB not to ignore the planning matters of municipalities.
Local Appeal Bodies
Under s.8(1) of the Planning Act, municipalities may establish, if they wish, local appeal
bodies to deal with certain matters instead of the OMB.
o s.8.1(1) - If a municipality meets the prescribed conditions, the council may by
by-law constitute and appoint one appeal body for certain local land use planning
matters, composed of such persons as the council considers advisable
Thus, if a municipality sets up a local appeal body, it has all the powers and duties of the
OMB under the relevant sections of the Planning Act, with the capacity for appeal under
s.8.1(10) from decisions of this body to the divisional court on a question of law
o Note that there is also capacity where person could seek to have OMB determine
a dispute, e.g. allegation that local appeal body did not have jurisdiction, & could
bring a motion to the OMB for a determination of whether there is jurisdiction.
Preventing Appeals from Certain Council Decisions
As a 3rd initiative of the McGuinty government, some appeals to the OMB in relation to
certain matters have been taken away.
o According to Richardson, this makes it ad hoc and scattered.
For example, there is no longer an appeal from a council decision:
o Refusing or failing to adopt a zoning or official plan amendment removing land
from an area of employment;
o Amending or revoking certain official plan policies respecting two units in certain
residential buildings (i.e. granny flats); or
o Where a person has failed to make any representations to council.
Restriction on Parties and Evidence at OMB Hearings
Restrictions are now found in parts of ss.17, 34, and 21 that restrict persons other than the
Minister from being added as a party to an OMB hearing unless the OMB believes there
are reasonable grounds to add the person as a party.
There is also now a restriction on evidence in the Planning Act, restricting evidence to be
heard by the OMB if it was not put forward to the municipality originally.
o However, still discretion for the OMB to allow for the filing of new evidence if
the board determines it would have materiality affected the council‟s decision.
Opportunity for council to reconsider decision in light of new evidence.
According to Richardson, these reforms do not go far enough; merely “nibble away” at OMB’s power.
He cites as an example the recent Queen St. W condo development, because condos are evil and
obviously any condo is a result of bad planning. See article on page 301. Thinks that OMB needs to have
regard to municipal decisions and plans, which apparently was also one of the changes.
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It is important to understand the relationship between provinces and municipalities,
referring once again to the Baldwin principles of autonomy vs. subordination
Provincial legislation is important to land use planning law – consider the Planning Act,
Provincial Policy Statements, and the Smart Growth Movement codified by the Places to
Note that, by “province”, usually referring to the Ministry of Municipal Affairs and
s.1.1 of the Planning Act defines a “public body” as “a municipality, local board, a
ministry, department, board, commission, agency or official of a provincial or federal
government or a First Nation”
o However, there is a limitation in s.1.(2) – this excludes all Ministries of the
Province of Ontario except for the Ministry of Municipal Affairs and Housing in
respect of appeals
o There is also a designation in (3) – despite (2), the Minister may, by regulation,
designate any other Ministry of the Province of Ontario to be a public body for
the purpose of the provisions referred to in (2)
o There is also an exclusion in (4) - The Minister may by regulation exclude any
board, commission, agency or official of the Province of Ontario from the
definition of “public body” set out in (1) in respect of [appeals].
This has 2 possible interpretations: The first, that all Ministries are not
public bodies under the Planning Act, and second, that all Ministries are
public bodies under the Planning Act, but cannot bring appeals
It is now accepted that the 1st interpretation applies, and other
ministries do not have a role in planning.
o Harris government did this to provide consistency – wanted
one policy put forth by one ministry, i.e. MMAH
Basic Planning Principles from Planning Act
s.1.1 of the Planning Act set out the basis principles for planning in its purpose:
a) To promote sustainable economic development in a healthy natural
environment within the policy and by the means provided under this Act;
b) To provide for a land use planning system led by Provincial policy;
c) To integrate matters of Provincial interest in Provincial and municipal
d) To provide for planning processes that are fair by making them open,
accessible, timely and efficient;
e) To encourage co-operation and co-ordination among various interests;
f) To recognize the decision-making authority and accountability of municipal
councils in planning.
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Issues of Provincial Interest from Planning Act
s.2 provides that “The Minister, the council of a municipality … in carrying out their
responsibilities under this Act, shall have regard to, among other matters, matters of
provincial interest such as,
a) the protection of ecological systems …;
b) the protection of agricultural resources …;
c) conservation and management of natural resources
d) (d) the conservation of features of significant architectural, cultural, historical,
archaeological or scientific interest;
e) the supply, efficient use and conservation of energy and water;
f) the .. provision and use of communication, transportation, sewage and water
services and waste management systems;
g) the minimization of waste;
h) the orderly development of safe and healthy communities;
o h.1 the accessibility for persons with disabilities so all facilities, services
and matters to which this Act applies;
i) the adequate provision and distribution of educational, health, social, cultural and
j) the adequate provision of a full range of housing;
k) the adequate provision of employment opportunities;
Note, however, that this sort of “motherhood statements” do not provide any guidance
with regards to how to weigh competing objectives
o An alternative model such as the one from New Zealand may be more helpful:
5. Purpose---(1) The purpose of this Act is to promote the sustainable
management of natural and physical resources.
(2) In this Act, ``sustainable management'' means managing the
use, development, and protection of natural and physical resources
in a way, or at a rate, which enables people and communities to
provide for their social, economic, and cultural wellbeing and for
their health and safety while -
o a) Sustaining the potential of natural and physical resources
(excluding minerals) to meet the reasonably foreseeable
needs of future generations; and
o b) Safeguarding the life-supporting capacity of air, water,
soil, and ecosystems; and
o c) Avoiding, remedying, or mitigating any adverse effects
of activities on the environment.
Note that Richardson is not fond of the list of provincial interests from the Planning
Act, and instead prefers the Places to Grow Act.
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Provincial Policy Statements
Policy statements are where the province puts it views down on paper and integrates them
o Thus, any criticisms of s.2.1 must also criticize s.3, which gives the province a
change to balance and prioritize the issues of provincial interest identified.
Under s.3(1) of the Planning Act, “The Minister, or the Minister together with any other
minister of the Crown, may from time to time issue policy statements that have been
approved by the Lieutenant Governor in Council on matters relating to municipal
planning that in the opinion of the Minister are of provincial interest”
Under s.3(5) – “A decision of the council of a municipality, a local board, a planning
board, a minister of the Crown and a ministry, board, commission or agency of the
government, including the Municipal Board, in respect of the exercise of any authority
that affects a planning matter,
a) shall be consistent with policy statements issued under subsection (1).
b) shall conform with the provincial plans that are in effect on that date, or shall not
conflict with them, as the case may be.”
2005 Provincial Policy Statement - Excerpts
“The Provincial Policy Statement provides policy direction on matters of provincial
interest related to land use planning and development. As a key part of Ontario‟s policy-
led planning system, the Provincial Policy Statement sets the policy foundation for
regulating the development and use of land. It also supports the provincial goal to
enhance the quality of life for the citizens of Ontario.”
1.0 Building Strong Communities
Ontario's long-term prosperity, environmental health and social well-being depend on
wisely managing change and promoting efficient land use and development patterns.
Efficient land use and development patterns support strong, liveable and healthy
communities, protect the environment and public health and safety, and facilitate
2.0 Wise Use and Management of Resources
Ontario's long-term prosperity, environmental health, and social well-being depend on
protecting natural heritage, water, agricultural, mineral and cultural heritage and
archaeological resources for their economic, environmental and social benefits.
3.0 Protecting Public Health and Safety
Ontario's long-term prosperity, environmental health and social well-being depend on
reducing the potential for public cost or risk to Ontario‟s residents from natural or
human-made hazards. Development shall be directed away from areas of natural or
human-made hazards where there is an unacceptable risk to public health or safety or of
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Consequences when Municipality Fails to Follow a PPS
The case of Hill and Hill Farms Ltd. v. Bluewater Municipality (2006) (OCA)
demonstrates the legal consequences when a municipality or board fails to follow a
o In this case, the board was the Normal Farm Practices Protection Board, which
was established under the Farming and Food Production Protection Act, 1998
o s.9(1)of that Act provides that “The Minister may issue directives, guidelines or
policy statements in relation to agricultural operations or normal farm practices
and the Board‟s decisions under this Act must be consistent with these
directives, guidelines or policy statements.”
Note that the standard of judicial review is “reasonableness”
This case involved Minimum Distance Separation Guidelines from the Ministry of
Agriculture. MMAH‟s PPS also contained Minimum Distance Separation Guidelines.
Ontario Court of Appeal: “The Board's comment that its decision did not contradict the
policy statement was unreasonable. Subsection 2.1.4 of the policy statement in effect at
the relevant time required that "... new or expanding livestock facilities will comply with
the minimum distance separation formulae". The Board's order directly contradicted the
plain wording of the policy”
o “Compliance with the Ministry's MDS II guidelines would have required the
appellant's closest proposed barn to be located 604 metres from the institutional
zone occupied by the Stanley Complex. Instead, the Board permitted a setback of
only 302 metres. This result -- a reduction by half of the required setback distance
-- simply cannot be said to be consistent with the MDS II guidelines. The Board
could not ignore section 9 and render a decision that was inconsistent with the
MDS II guidelines. Its decision was unreasonable.”
OCA ruled that, when the Board is exercising its functions in determining what is a
normal farm practice, one of the things that must be assessed is whether there is an
applicable provincial policy statement.
o OCA found that both under the PPS under Planning Act and PPS under Ministry
of Agriculture there was MDS guidelines, and concluded that the Board had failed
to make its decision consistent with relevant provincial policy statements on
whether the expansion of the pig farm would be a normal farming practice.
This case is a good example (i.e. to cite) whenever an issue comes up that looks at the
status of a provincial policy statement
Note that the “standard of reasonableness” means that the court is looking for a
plausible rationale to defend the decision of the lower court.
o However, where there is discretion, the court may find that a decision was
reasonable even if they do not agree with it.
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Smart Growth & the Places to Grow Act
What is „Smart Growth‟? How does it differ from sustainable development? Is it the same
as „New Urbanism‟?
The Ontario Smart Growth Network:
o “We believe that urban development should take place in a way that protects nature,
essential ecosystems, prime farmland and drinking water sources; makes efficient and
sustainable use of energy, water and other natural resources; and minimizes pollution and
o “We believe that urban development should support healthy, distinctive and attractive
communities, with affordable housing and easy access to employment, health care,
education, and community services. Urban development should also create a strong
sense of place where non-automobile based transportation modes, such as walking,
bicycling and public transit, are the most appealing and viable transportation options.”
o “We believe that urban development should help sustain vibrant, diverse economies, with
meaningful local employment.”
Ministry of Municipal Affairs and Housing: Want to promote growth in towns, cities
and rural areas while at the same time managing growth to prevent undue pressure on our
environment and to make sure that we have the infrastructure, such as roads, transit and
water and sewer systems to meet the needs of communities.
Hong Kong is an example of Smart Growth because it has a lot of green spaces and good
Richardson: “Land use planning is the midwife of the agenda of growth”.
Smart Growth is about the intensification of existing built-up areas.
The Greenbelt Legislation is another part of the Smart Growth package.
Deborah Curran & Ray Tomalty – “Living It Up”
It is important to identify instruments to smart growth – financial instruments such as
polluter pays, brownfield redevelopment and freedom from liability.
Preserve greenspace; make full use of existing infrastructure, transit, etc.
Cite Hong Kong as an example of smart growth
Peter S. Taylor – “The New Feudalism: The Future of Cities”
The goals of New Urbanism are to curb suburbs and force people into downtown high-
rises, frustrating the dreams of young homebuyers.
It is more accurate to call New Urbanism “New Feudalism”.
Putting limits on suburban growth and creating higher-density downtowns will create
greater income stratification in housing.
It is undemocratic, arbitrary and unfair to average families. It is socially diverse and
relies on unscientific folk tales for its support.
Peter Gorrie – “Urban Sprawl: It‟s Back”
Smart Growth policies aren‟t working and sprawl continues unabated
Criticizes Places to Grow Act – lots of big box retailers, suburban office parks, critical
that public transportation remains under-funded
Walking is “boring and often dangerous”
Legal controls are riddled with loopholes (N.B. Richardson does not agree).
Lays blame on developers for thwarting Smart Growth.
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The Places to Grow Act, 2005
The Harris Government wanted to promote economic growth, and the MMAH was
involved in a length consultation process.
o In 2002, they released Ontario‟s Smart Growth and New Vision brochure, which
says that smart growth is about better management on growth.
o What the government was trying to do was not rely on market forces to drive
growth, but rather provide more management of growth by the government.
o Key policies – Brownfield redevelopment, improving Go and TTC, gun crime
control, establish smart growth panels.
o However, what Harris government failed to do was provide a strong legislative
envelope for smart growth – only did consultation, information and weak policies
The McGuinty government introduced the Places to Grow Act in 2005
o David Caplan described it as “…the Places to Grow Act is enabling legislation.
If passed, it will allow the government to designate specific geographic regions of
this province as growth planning areas and to develop growth plans that would
guide future developments in those areas. This legislation would encourage land
use planning that looks beyond the restrictions of simple municipal boundaries. It
would integrate planning across natural and local boundaries and help ensure that
growth policies are coordinated amongst all levels of government.”
Essentially, the Act is designed to use regulations to flesh out the actual “meat” of the
It allows the government to designate areas for smart growth, and then develop growth
plans for those areas to enable their growth to be „smarter‟.
o This is an admission of the failure of the Planning Act to provide regimes to
provide for smart growth.
The purposes of the Places to Grow Act are found in s.1:
(a) to enable decisions about growth to be made in ways that sustain a robust
economy, build strong communities and promote a healthy environment and a
culture of conservation;
(b) to promote a rational and balanced approach to decisions about growth that builds
on community priorities, strengths and opportunities and makes efficient use of
(c) to enable planning for growth in a manner that reflects a broad geographical
perspective and is integrated across natural and municipal boundaries;
(d) To ensure that a long-term vision and long-term goals guide decision-making
about growth and provide for the co-ordination of growth policies among all
levels of government.
Note, once again, the use of “motherhood statements” – too many objectives with no
guidance as to weight.
o Recall that Frug argues that the best kind of planning system is regional, because
it deals with social divisions and have and have-nots. (c) states that instead, you
must manage this for the entire gold horseshoe.
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s.6 sets out the possible contents of a Growth Plan:
(a) population projections and allocations;
(b) an assessment and identification of priority growth areas, emerging growth areas
and future growth areas, over specified time periods;
(c) Growth strategies for all or part of the growth plan area….
s.13(1) sets out Minister‟s proposals to resolve non-conformity with a growth plan, and
s.13(2) sets out the possibility of a joint order:
1) If, in the Minister's opinion, the official plan of a municipality … does not
conform with a growth plan … the Minister may,
a) advise the municipality or municipal planning authority of the
particulars of the non-conformity; and
b) Invite the municipality or municipal planning authority to submit,
within a specified time, proposals for the resolution of the non-
2) The Minister jointly with the Minister of Municipal Affairs and Housing
may, by order, amend the official plan to resolve the non-conformity,
a) if the council … fails to submit proposals to resolve the non-
conformity within the specified time; or
b) (b) if proposals are submitted but, after consultation with the
Minister, the non-conformity cannot be resolved ...
N.B. This can be referenced back to the Baldwin Principles – the municipality is subordinate
to the province.
s.14 sets out the Effect of a Growth Plan
1) A decision under the Planning Act … or under such other Act … made by a
municipal council, municipal planning authority, planning board, other local
board, conservation authority, minister of the Crown or ministry, board,
commission or agency of the Government of Ontario, including the Ontario
Municipal Board, or made by such other persons or bodies as may be
prescribed that relates to a growth plan area shall conform with a growth plan
that applies to that growth plan area.
Conflicts re: directions in plans, policies
4) Despite any Act, but subject to a regulation made under clause 18 (1) (b), (c)
or (d), if there is a conflict between a direction in a growth plan and a
direction in a plan or policy that is mentioned in subsection (5) with respect to
a matter relating to the natural environment or human health, the direction that
provides more protection to the natural environment or human health prevails.
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Richardson: Official Plans are an aspirational document that provides a plan for
development into the future
OPs are documents that provide guidance and a framework for stable, predictable, orderly
development within the jurisdiction of the municipality
They deal with the basic tension in the planning system, regarding private
property rights – preservation vs. intensification.
s.16(1) of the Planning Act provides a definition of what an OP shall contain:
(a) goals, objectives and policies established primarily to manage and direct
physical change and the effects on social, economic & natural environment of the
municipality or part of it, or an area that is without municipal organization; and
(b) such other matters as may be prescribed.
s.16(2) of the Planning Act provides for optional content – an OP may contain:
(a) a description of the measures and procedures proposed to attain the objectives
of the plan;
(b) a description of the measures and procedures for informing and obtaining the
views of the public in respect of a proposed amendment to the official plan or
proposed revision of the plan or in respect of a proposed zoning by-law; and
(c) such other matters as may be prescribed
Consider whether things such as rental housing preservation amounts to a physical
change as per s.16(1)
Courts have said that the OP must deal primarily with physical changes, but it does not
say that it can only deal with physical changes. Further, the OCA has said that s.16(1) is
framed in mandatory terms – provides what must be contained in the OP, but this gives
only minimum requirements and thus is not exhaustive – i.e. other things can go into the
OP, and it is necessary to look at the Planning Act as a whole
“The permissible scope of the OP must be sufficient to embrace all matters that
the legislature deems relevant for planning purposes” – the purpose of the
Planning Act acts as a guide for what the OP may contain
Official plans are mandatory for upper-tier municipalities, e.g. regions and designated
counties, and single-tier municipalities such as the City of Toronto under s.17(13)
Official plans are optional for lower-tier municipalities under s.17(14)
Regulations provide for distinction between upper and lower-tier municipalities.
Who Creates the Official Plan?
The comprehensive OP or substantial revision to OP must be done by the municipality
An OP amendment, under ss.21-23, may be proposed by a municipality under s.21, any
person or public body under s.22, or the Minister (of MMAH) under s.23
s.23 - Where the Minister is of the opinion that a matter of provincial interest as set out
in a policy statement issued under section 3 is, or is likely to be, affected by an official
plan, the Minister may request the council of a municipality to adopt such amendment as
the Minister specifies to an official plan and, where the council refuses the request or
fails to adopt the amendment within such time as is specified by the Minister in his or her
request, the Minister may make the amendment. – Note that this is SUBJECTIVE
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What Must a Municipality Do to Create an OP? – 4 Phases
Phase 1 – Preparation of Official Plan and Public Consultation:
Ensure that a public meeting is held: s.17(15)(d)
o Notify people and public boards about the meeting.
o O.Reg. 543/06 provides 3 means of notice: public notices posted within 120m of
the subject land; and ordinary mail or personal service to every land owner within
120m of subject land, or notices in a major newspaper
Ensure that adequate information is made available to the public: s.17(15)(c)
o Notice must contain: meeting details, purpose effect of official plan or OP
amendment, affected land, where to find the draft plan and background materials,
the risk to appeal rights to OMB if one does not attend meeting, if specific land
use rules are being considered
o Note that Planning Act provides an opportunity to possibly deviate from these
requirements under s.17(21)-17(23) – where there are certain technical changes,
for example, the requirement to hold a public meeting does not apply if the
municipality refuses to adopt an amendment to its OP requested by a person or
public body under s.22(3); or the municipality may follow its own “alternative
procedures” if they are contained in an existing OP under s.17(19.3) & 16(1).
Consult the approval authority (and prescribed bodies) EVEN if municipality‟s OP is
exempt from approval: s.17(15)(a)-(b)
Provide public notice of public meeting: s.17(17)
o In additional to a public meeting, under s.17(16), an open house must be held no
later than 7 days before the public meeting when an existing OP is to be revised,
as is required every 5 years.
o See case on following page.
Make publicly available a copy of the proposed plan: s.17(19.1)
Give „any person‟ who attends meeting an opportunity to speak: s.17(19.2)
Accept written submissions from „any person or public body‟: s.17(20)
o Note that the Planning Act does not require the municipality to incorporate the
public consultation process; however, a failure to do so may give rise to a
challenge to the decision under judicial review on the basis of reasonableness
Provide adequate information and opportunity to comment to any other persons and
bodies the council considers “may have an interest” in the OP: s.17(21).
Note that the key regulation governing the details of OP preparation is O.Reg. 543/06
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Gaudaur v. Etobicoke (City) (1997) (Ont. Crt. Gen. Div.) – Who Gets Notice?
N.B. From 1997, so many of the second numbers have since changed.
Facts: Cemetery owner wanted to demolish an office at the corner of the property to erect
condos. Area was designed under Etobicoke OP as open space. Owner applied to
municipality for OP amendment to change to high-residential area. Owner complied with
statutory requirements – put up signs, notices given to landowners, advised of public
meeting, etc. Meeting was held and 37 people attended, including some of the aggrieved
party – people with relatives buried in cemetery who do not like the condo idea.
Etobicoke passed OP amendment and later allowed property-owner to sever parcel of
land to allow for condo development. Relatives appealed to OMB, who did not provide
them with “relief and justice”. Requested judicial review to challenge legality of OMB
Issue: Did relatives deserve their own notice of proposed OPA? Is there an additional notice
requirement based on the common law rules of natural justice (i.e. people materially
affected by decision should have chance to voice their concerns in hearing without bias)?
Decision: No; applicant complied with statutory provisions and nothing further could be required
beyond the requirements in the Planning Act.
Reasons: O‟Driscoll, J. held that notice requirements had been complied with and there was no
evidence of bad faith, and therefore the city had done what it needed to do. If natural
justice is to apply here, the court must be satisfied that the procedures in question could
be characterized as semi-judicial and the Planning Act has not, expressly or by
implication, ostracized the common law, and thus it has no role. Referred to s.41 of the
Planning Act, which says that, where passing a by-law, the council is required to afford
any person an opportunity to make a representation, and council should be deemed to be
performing a legislative and a not judicial function. Thus, there is no role for natural
justice because the municipality was not acting in any judicial function that would invite
the application for rules of natural justice.
Dissent: “Importance of notice cannot be overstated, and both Planning Act and the OP
recognize the fundamental importance of notice to those who will potentially be
affected by a major change in the constitution of planning for the municipality. The
decision as to who should be notified and how implementation of the notice
requirements of the Official Plan should be carried out, so the largest number of
citizens likely to be affected by the amendment will be made aware of proposed
changes, is more than an administrative act. It is a quasi-judicial decision requiring
a reasoned analysis. Any reasonably thinking municipal official, with knowledge of
the OPA sought by the developer of land adjacent to a graveyard, ought to have
known that the majority of persons likely to be affected by the change were owners
of grave plots and the loved ones of deceased persons buried in the cemetery”.
Planning Act gives discretion, and where there is discretion, there is an opportunity to
incorporate natural justice and give more notice than is required. Would have declared
OP amendment to be void.
Notes: Richardson thinks that there is an argument to be tested in the Ontario courts that the
Planning Act does not provide the last word on notice, and argument to be made that, in
some circumstances, additional notice based on common law principles is required.
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Phase 2 – Adoption of the Official Plan or Amendment:
s.17(22) outlines criteria for adopting an OP – municipality must be satisfied all public
consultation procedures completed; if there is a provincial planning interest at stake, that
it has been considered; and council must be satisfied that plan is suitable for adoption.
In order to adopt an OP or OP Amendment, a by-law is passed under s.17(22) and public
notice of the adoption is provided as required under s.17(23)
Under s.17(23), notice of the decision to adopt is required within 15 days of the decision.
o Notice must be given to the approval authority even if exempt under s.17(23)(a)
o Notice must be given to persons and public bodies that requested notice under
o Notice must be given to any other person and public bodies prescribed under
s.17(23)(c) – see O.Reg 543/06, s.4
o The Notice of Adoption must include the date the by-law adopting the OP or OP
Amendment was passed, the OP or OPA‟s purpose and effect, where to access
information about the plan, and any pending amendments or related land-use
controls, such as ZBLs
Note that there are fewer stipulations if the OP or OPA is exempt.
Note that if these steps are not followed, there has been a legal error.
o The role of public consultation and involvement is also important.
o Note that there is some delegated authority given to municipalities, but the
Minister still retains a lot of oversight and control.
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Phase 3 – Approval of Official Plan or Official Plan Amendment
Adopted OPs and OPAs must be approved before they can take effect
Under s.17(1), except as otherwise noted, the Minister is the approval authority for an OP
Under s.17(23)(a), all official plans, even those that do not require approval, should be
sent to the nominal approval authority unless that authority has said they do not want to
Under ss.17(2) & 17(4), an upper-tier municipality is the approval authority in respect
of an OP or OPA of a lower-tier municipality if the upper-tier municipality has an
o However, the Minister can remove this authority and become the approval
authority under s.17(6)
Under ss.17(9) & 17(10), the Minister may exempt an OP or OPA from their approval
o O.Reg. 525/97 identifies who is exempt, but this only covers OPAs
o Note that delegation of approval authority means that OPs and OPAs adopted
by a local municipality go to the upper-tier municipality for approval, not to
The approval authority‟s powers include the ability to confer with any person it believes
has interest in the OP/OPA under s.17(34), and the ability to decide whether all or part of
the OP/OPA should be approved under s.17(34).
o The approval authority‟s duties includes giving written notice of the decision to
specified persons and bodies under s.17(35)
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Phase 4 – Possible Appeal of Official Plan or Amendment
There is a period of 20 days from the notice of approval to file an OMB appeal under
If there is no appeal after 20 days from the notice of approval, under s.17(38) the
approval authority‟s decision is final (s.17(38(a))
o The approved Official Plan or Official Plan Amendment takes effect under
Sections 17(24) to 17(30); 17(36) to 17(50); 22(7) to 22(13) all deal with appeals
o There are issues of standing, time limits, what may be appealed, the criteria for
the appeal, the appeal procedures and under s.23, OMB referral.
Under s.17(24), appeals can made for OPs and OPAs not initiated by request by any
person, a public body (recall this just means MMAH)
o There is no standing for unincorporated associations
Under s.22, for an OPA initiated by request, a person or public body that requests the
OPA may file an appeal if the request is rejected by council (s.22(7)); or, if the request is
approved, general rights of appeal for others are available under s.21(1)
For an exempt OP/OPA, appeals must be launched within 20 days under s.17(24)
For a non-exempt OP/OPA, appeals must be launched within 20 days of notice of
decision from the approval authority under s.17(36)
o An appeal that the approval authority has not made a decision can be brought 180
days after the approval authority receives notice of adoption under s.17(40)
For an OPA made by request, whether exempt or non-exempt, if there is no response by
council within 180 days, an appeal may be brought under s.22(7.0.2)
o If the council notifies that they are not adopting the by-law, the appeal must be
brought within 20 days under s.22(7.0.3)
There is no explicit criteria on what may be appealed, but s.17(45) says that the appeal
may be dismissed within a hearing if the OMB is of the opinion that the notice of appeal
discloses no apparent land use planning ground
o May dismiss or decline to hear an appeal if it is made in bad faith or is otherwise
frivolous or vexatious, or made only for the purpose of delay (s.17(45))
In order to appeal, one must file a notice of appeal and fee with the municipality or
o The notice of appeal must identity the contested parts of the OP/OPA under
s.17(25)(a) & s.17(37(a) and give the reasons for appeal under s.17(25)(b) &
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OMB Referral, under s.23 – This provide an opportunity for a bit of natural justice; i.e.
if the OMB does not hold a hearing, it is not determinative and it is up to the cabinet to
confirm the OMB‟s decision.
o (1)Where the Minister is of the opinion that a matter of provincial interest as set
out in a policy statement issued under s.3 is, or is likely to be, affected by an OP,
the Minister may request the council of a municipality to adopt such amendment
as the Minister specifies to an official plan and, where the council refuses the
request or fails to adopt the amendment within such time as is specified by the
Minister in his or her request, the Minister may make the amendment.
o (2) Where the Minister proposes to make an amendment to an official plan under
subsection (1), the Minister may, and on the request of any person or municipality
shall, request the OMB to hold a hearing on the proposed amendment... as to
whether the amendment should be made.
o (3) Despite subsection (2), where the Minister is of the opinion that a request of
any person or municipality made under subsection (2) is not made in good faith or
is frivolous or vexatious or is made only for the purpose of delay, the Minister
may refuse the request.
o (5) The Municipal Board, after the conclusion of the hearing, shall make a
decision as to whether the proposed amendment, or an alternative form of
amendment, should be made but the decision is not final and binding unless the
Lieutenant Governor in Council has confirmed it.
Statutory Effect of Official Plans
24.(1) Despite any other general or special Act, where an official plan is in
effect, no public work shall be undertaken and, except as provided in
subsections (2) and (4), no by-law shall be passed for any purpose that does not
o Note that the statutory definition of a public work under s.1(1) is “any improvement of a
structure nature or other undertaking that is within the jurisdiction of the council of a
municipality or local board”.
o s.24(2) deals with pending amendments, and permits municipalities to pass by-laws that
do not conform to the existing OP but will conform to the amendments adopted by the
municipality and awaiting approval.
o s.27(1) The council of a lower-tier municipality shall amend every official plan and every
by-law passed under section 34, or a predecessor of it, to conform with a plan that comes
into effect as the official plan of the upper-tier municipality. The council of a lower-tier
municipality shall amend every official plan and every by-law passed under section 34,
or a predecessor of it, to conform with a plan that comes into effect as the official plan of
the upper-tier municipality.
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Re Official Plan of Richmond Hill Planning Area (1980) (OMB) – Role / Mandate of OMB
In this case, 150 people appealed the OP to the OMB, arguing that it was a poorly-prepared plan,
based on outdated studies, had gaps, left too much discretion to council, etc. They wanted the
OMB to re-write the entire.
The OMB was faced with a momentous responsibility, and said that it was not their role or
jurisdiction to re-write an official plan.
There, even with authority under s.23, they were not going to re-write the official plan.
Note that an OP must be fully-reviewed every five years, and out of that review would come a
new OP which would have to go through the full procedures outlined previously.
Re Township of Southwold and Caplice et al. (1978) (Ont. HCJ – Gen. Div.)
In this case, the MOE authorized the siting of a waste-disposal facility at a location contrary to
that of the official plan of the Township provided for and residents challenged decision on a
number of grounds, one of them being that it was a public work, which under s.24 cannot be
contrary to the official plan. Called for judicial review of decision.
Court rejected the idea that the OP itself could be a land-use planning regulation; rather, it must
be implemented by further controls. Thus, the argument that simply because the OP and the
siting of the dump are contrary will not be grounds for overturning the decision.
Second issue was whether the dump constituted a public work for the purposes of s.24. Public
work is defined in Planning Act - “any improvement of a structural nature or other undertaking
that is within the jurisdiction of the council of a municipality or local board”. The project was
entered into by a private corporation, and just because it could have been done by the
municipality does not make it a public work under the Act. Recall that private uses do not need
to conform; only public uses do.
There is no merit to the argument that “because…it would have been within the jurisdiction of
the municipal corporation to undertake the development of such a site and because it was
expected that the [business] would ultimately be entered into a contract with the [municipality]
for the removal of garbage, the development of the site thereby became a public work”.
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Re Cadillac Development Corp. Ltd. et al. and City of Toronto (1974)
This was a very politically controversial case. It gives insight into the role of municipalities as
elected bodies and the role of courts to try and control them. The conflict centered on an area of
land that was inhabited by low-to-middle income people in High Park North. Property
development corporation bought 100 houses in area with intention to put up condos. Eventually
applied for re-zoning to admit higher-density development. Proposal would have increased
number of residential units from 100 to 1900, with a decrease in the number of family-size units.
Application was consistent with OP of 1969, which provided for intensification of land in that
area. There was a great deal of opposition from neighbourhood residents, and case part of a
large anti-development movement in Toronto. Council passed a ZBL that would bring that area
of high park into conformity with the OP and permit Cadillac‟s condo development. This was
appealed to the OMB.
In the interim, there was an election, and at first council meeting one of the new councillors
brought a motion to kill the ZBL. Council decided to get a legal opinion from city lawyers as to
how to repeal the bylaw currently under appeal and whether there would be adverse legal
consequences. Lawyer gave a cautious reply urging against repeal due to potentially dire
consequences. This was refuted by some big-shot property lawyer, whose view was that the City
had the power to revoke by-laws and were required to exercise their power in the public interest
and be responsive to the desires of the people. City revoked by-law.
Cadillac brought an application for judicial review of the decision to revoke the by-law. Council
passed a by-law to repeal the by-law currently under appeal, which meant that the ZBL no longer
conforms to the OP. Effect of repeal was that the council had passed a ZBL requiring the high
park area to be low-density, whereas the OP said it should be high-density.
Note that the new bylaw was still technically within the scope of the OP, because low-density is
within the realm of high-density, i.e. can go up to high-density, but being under is acceptable.
Court held that the Planning Act does permit councils to pass ZBLs that do not precisely
conform to the OP so long as the substance of the by-law is within the limits of the OP.
Thus, in interpreting s.24(1), the ZBLs do not have to precisely conform to the OP, but must be
within the scope of it. OP is not effective as a direct control of land use, and is a
recommendation only, representing a policy or program rather than a set of legal rules. Thus,
while the council is permitted to authorize high-density development through a by-law, it is not
required to do so – the OP scheme is permissive and enabling, rather than mandatory.
Cox Construction Ltd. v. Township of Puslinch (1982)
s.24(1) does not permit a municipality to pass a ZBL that prohibits a use that the official plan
indicates would be considered. In this case, it was an application by Cox Construction under the
Municipal Act to quash a by-law for illegality.
OP had designated an area as rural, but indicated that lands in the area could be considered for a
gravel pit operation. Since the OP permitted the use subject to strict controls, a by-law that
prohibited the use completely was not a conforming by-law under s.24(1).
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Davison v. Orangeville (Town) (1996)
Issue in this case was whether a municipality must pass a conforming by-law to implement its
official plan. Davis applied for a building permit to convert a triplex into a combined
residential/commercial property. This was prohibited under the ZBL passed earlier, but
permitted under the official plan. ZBL had not been amended to be consistent with new OP.
Building permit refused on the basis that use did not comply with ZBL – note that the Building
Code Act states that permits shall be issued unless there is a contravention of applicable law.
City argued that ZBL was applicable law.
Court ruled that the OP has no direct effect on land uses and hence is not applicable law since
the OP amendment is not applicable, and the only valid land-use law is the ZBL – which
prohibits the applicant‟s proposed use.
Court also noted that s.24(1) prevents councils from passing non-conforming ZBLs subsequent
to an OP, but the fact that a ZBL pre-dates an OPA that is more restrictive than the ZBL is not a
breach of s.24(1).
Richardson says that this case shifts from Cadillac because, although the Council is not required
to pass by-laws to implement the official plan, they are expected at some point to bring the
regime into conformity with the OP. In this case, in the absence of bad faith, a delay of up to 2
years is acceptable, but the Court did warn the municipality to get on with bringing ZBLs into
conformity with the OPA.
Re Woodglen & Co. Ltd. and City of North York et al. (1983)
Dude wanted a building permit. Use for which the permit was requested was permitted under the
applicable zoning by-laws. Permit was refused on the ground that the proposed construction was
contrary to the official plan.
“Official plan and amendments thereto are not effective in themselves to regulate land use
and are not part of the applicable law which the chief official is to obey”.
Ontario Planning and Development Act, 1994
This act allows for the creation of a “development planning area”, after which studies can
be carried investigating the environmental, physical, social and economic conditions
affecting the development planning area of any part of it, and cause a proposed
development plan for the planning area of part of it to be prepared.
o See readings, pg. 399, for required contents of plan.
What is the difference or relationship between plans under this act and growth plans
under the Places to Grow Act?
o Does this act allow the province to promote smart growth?
Places to Grow Act says that certain things must conform to the Growth Plan.
o However, that act is a political document derived to make the government look
like they are initiating a new scheme.
The point is that the provincial government has 2 tools to use to promote planning
outside of the Planning Act itself.
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Key Points on Official Plans
OP not effective as a direct control of land use: its provisions have little legal
impact until implemented (usually by zoning by-law) – zoning by-laws giving
effect to the plan
OP „recommendation only‟ and must be implemented by law
represents a policy/program rather than a set of legal rules
nothing in legislation obliging/requires municipality to set about
when city OP is read in light of this, while council is permitted to authorize high
density, it is not required to do so
OP scheme is permissive and enabling rather than mandatory
BR: reminiscent of „Places to Grow‟ act (doesn‟t have to…)
key to understanding: conception of kind of decision involved
we‟re dealing with a political issue for which council members are
accountable to the electorate
„municipal council‟ as elected body to address matters of public policy and
to give effect to public views
Random OP Stuff
s. 24(2): pending amendments
o permits municipalities to pass by-laws which does not conform to
existing OP, but will conform to OP waiting approval (or OPA)
o „saving device‟
s. 27(1): relationship bet. upper and lower tier municipalities
s. 27(2): files within 1 year to bring it into conformity.. amending lower tier
(in the same way the minister can do so)
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The idea of “community” is that it is a stakeholder in the land use planning system.
o However, it is necessary to critique what is meant by community (as is done in the
article by Iris Young)
In Ontario, there is a growing demand for public participation
o Public participation has been an indelible feature of modern systems of
governance over the last few decades
o Individuals and organizations affected by government policies increasingly want
more say and more voice in those decisions
There is a growing demand for more accountable and transparent decision-
There are 4 primary factors behind this trend:
1. Weaknesses in the system of parliamentary democracy
Demand for more grass roots and community-based levels of input.
Elections occur too infrequently
Elections simplify issues and hardly a basis for informed policy-making
Modern policy-making has become incredibly complex, and no way that
parliament, with limited time, can deal with the vast array of complex
issues in modern society
2. Social movements and civil protests
those in power are hostile to the idea that there could be independent
protest and community self-expression, so have tried to channel this
agitation into formal legal processes such as hearing and submissions and
OMB appeals where, in a sense, it can be managed and made more orderly
and less contentious and disruptive
3. Surrogate political processes
When thinking about the environment – land care, recreation,
transportation, housing, etc.
quality of decision-making can be improved if community can be involved
in those processes
4. Good governance and human rights
increase in human rights legislation, and with movement towards human
rights spills over and creates more general demand for accountability and
this is a sign of good governance
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Historical Overview of the Rise of Community Involvement in Planning
and Environmental Decision-Making
Began to appear in planning systems worldwide during the late 1960s and early 1970s,
coinciding with political upheavals of these times, with people advocating for more
involvement and environmental protection, etc.
Recall that Patrick McCaulson described planning law as having 3 ideologies; the
ideology of public participation came about in the late 60s.
During the 1970s and 1980s, commentators increasingly talked about the value of
bottom-up developments and grassroots movements.
o e.g. Shoemaker – “Small is Beautiful”: wanted to reduce the scale of decision-
making and do more at a local community level as a way to cultural and
In the 1990s, parlance changed to include things such as environmental justice and
environmental citizenship, which captured the new mood about the qualities found in
good public decision-making in land-use planning and environmental decisions.
o During this time there was also a movement within the political sphere with the
growth of alternative parties such as the Green Party
These changes led to legal reforms, e.g. the Battle of Kelly‟s Bush in Australia.
o Legislation passed to allow for formal processes to give people voice, so that they
would stop protesting.
Theories on the Community and Public Participation
Iris Young – “City Life and Difference” – pg. 413
Sceptical of how we often think about what the word “community” means
Begins by being highly critical of the concept of the “ideal community”, as this vision of
small-scale groups living in harmony with a local municipality governing their affairs is
suspect and not necessarily the better model.
She believes that when community is tied to the concept of local autonomy, it can
actually promote more hardship than it resolves.
If city politics are to be democratic, it must be a political system that takes account of and
provides voice for different groups that dwell together in the city without forming a
Thus, her ideal is that we should affirm rather than suppress group differences, so as to
not create social exclusion
o This notion of community implies unity and devalues difference
The most series political consequence of a desire for community is that it operates to
excludes those who are different; it values and enforces homogeneity
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Goes on to say that her arguments against the ideal of a community are not arguments
against the project of construction of group identity and solidarity, but thinks that it must
be approached in a different way
Her alternative vision for how people can live together and participate democratically in a
municipality has four elements:
1. Social Differentiation without Exclusion – to her this means that deviant or
minority groups flock to the big cities away from small towns (like gays).
because the community in small towns only includes those with shared values,
e.g. gay people tend to be ostracized, so they want the autonomy of a large city to
form their own groups. city life leads to freedom for group differentiation.
2. Variety – what makes cities interesting is the diversity of activities they support,
e.g. trendy neighbourhoods (apparently like Jane Jacobs)
3. Eroticism – pleasure and excitement of being drawn out of routine to encounter
the pleasant, the strange and the exciting. going outside your own group to
experience other groups/cultures/etc.
4. Publicity – public spaces open to all, e.g. parks, shopping plazas, etc. Places
where people can come together and interact.
She thinks that we should promote these 4 ideals, rather than the suspect ideal of a small
Argues that community-building by municipalities worsens the problems of cities –
highly critical of municipal governments.
o Identifies several reasons why it exacerbates these problems – one is the
centralized and bureaucratic domination of cities, e.g. the domination of the
corporate sector due to the dependence on it for investment, jobs, tax revenue
also argues that decision-making structures contain mechanisms that hide
and perpetuate social injustices. pg. 422 – highly critical of LUP
decisions. “closed arenas” for city officials and developers in which
public does not have a lot of say.
Talks about processes of segregation and exclusion within cities and between cities and
suburbs. suburbs separate people from where they work and shop, which is bad.
most far-reaching impact of municipalities and their governance is between
municipalities themselves. lot of small municipalities with their own territorial
jurisdiction and that leads to problems because one municipality may decide to provide
services to attract investment but denies social services to people they don‟t want in their
municipality – leads to exclusion through land use policies and choices in funding for
In order to create a solution to these problems, she comes up with a solution that is
consistent with Frug - Frug favoured regional governments and
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o Young likes this too, because when you create regional governments you reduce
the capacity for having differential policies and rules and services that benefit
some but exclude others. regionalization leads to standardization.
o arguing for a limit to the Baldwin principle of local autonomy – should only allow
local autonomy to the extent that it does not provide a vehicle for harm to others.
to her, local autonomy provides a vehicle to hurt others.
o favours empowerment over autonomy. Sees empowerment happening by things
like neighbourhood assemblies that elect representatives to the regional
Richardson - One of the weaknesses of the Iris Young paper reflects the jurisdiction she
is in (USA, and apparently Canada). Thinks that if Young was writing her book in
Australia or UK, would have written a different book.
o In UK, for example, many services like police, schools, public transit, etc. are not
funded by municipalities but through central government.
o In Sydney Australia, local government has nothing to do with police, schools,
public transit – all done by State of NSW.
o So in developing her theories, working from a model that assumes that all these
services come from a local level.
in Ontario, there are moves to create some of the things that Young and Frug would like –
e.g. Places to Grow Act and amalgamations
Rational Elitism School
This school of thought treats environmental and land-use planning as a complex technical
matter requiring a lot of expertise and therefore it is a model of decision-making that
would deemphasize role of public/community and would put more weight on experts, e.g.
environmental risk assessments.
Criticism: scientific expertise and technical attributes become an excuse to stop other
people from having voice. Obfuscates real political agendas.
Liberal Democratic Perspective
This approach to participation stresses importance of procedural rights for NGOs and
individuals to be consulted and be heard. When electoral legitimacy is weak, procedural
legitimacy is more important. Growth of supplementary public consultation and
participation procedures. Administrative decision-makers now have an additional pool of
information/views that they should take into account. meant to bolster legitimacy
Participation can illuminate gaps and weaknesses in the value judgements inherent in
reduces the risk of agency capture – capture theory is that if you don‟t have broad public
participation that those who make decisions are likely to be captured by those they should
be regulating, e.g. the evil property developers with politicians in their pockets. Public
participation helps to break up this dirty incestuous relationship by creating more eyes
and ears to watch what is going on and greater propensity for whistle-blowing.
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deals with a limitation in liberal democracy
Limitation is that it does not provide a process for active citizen participation, action
Deliberative Democracy seeks to empower people by allowing for very substantial
involvement in decision-making. It would be more than just right to hold a hearing and
make submissions, e.g. would include right to negotiate land-use planning rules.
theory is that when you actually participate in this substantial way, it does 2 things –
ensure that decisions reflect true views of community, and provides a process of civic
education that leads people to being more enlightened and aware
consider recent initiative of McGuinty government to establish local community appeals
board for, e.g. minor variances – local residents get to decide things like minor variance
Aboriginal participation. First nations land management act – allows bands to opt out of
Indian Act land provisions and negotiate a land use code with federal government, so that
land use rules are a negotiated agreement between government and band
Methods of Community Participation
Sherry Arnstein – Ladder of Citizen Participation (from bad to good)
1. Not real participation; aim is to educate participants in the “right way”, according to
those in power.
2. Consists of propaganda or public relations exercises
1. Better, but still PR
1. Legitimate step, but emphasis is still on a one-way flow of information; decision-makers
inform but not allow for feedback
1. Step-forward for empowerment, can involve things like surveys, neighbourhood
meetings, or public inquires; but Arnstein feels that a lot of this is “window-dressing
1. Could mean you co-opt handpicked worthies to put them on government committees; or
could allow citizens to advice and have some sort of special role, but what happens is that
the real power-holders retain control and pick people that they think will placate the
1. Power to make decisions is re-distributed and there is a real sharing of responsibilities
7. Delegated Power
1. Where citizens would be delegated to make substantial decisions rather than have their
representatives make them on their behalf
8. Citizen Control
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A second way of thinking about participation is top-down vs. bottom-up approaches
o First is where the government initiates participation, and the second is where
communities initiate participation
e.g. a right for any purpose to propose an amendment to an OP
Substantive vs. Procedural Dimensions of Participation
Substantive – designed to be built around human rights, e.g. right to a clean environment.
Rights that individuals in the community can hold that provide a basis for strong
Procedural participation means rights to participate in decision-making, e.g. right to
consultation or right to appeal.
The two are often intertwined – substantive rights require procedural rights to give them
This is a form of participation that is outside of the legal arena.
It does not operate within a legal framework.
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Different Types of Community Interests
How can community interests be able to express the values of a particular community
Katherine Graham et al. – “Interest Groups and Public Participation”
Social movements and interest groups represent distinct identities, interests and concerns
of their communities with a view to changing policy and educating the public as to their
She is somewhat critical of participation because sometimes a vehicle for NIMBYs
Can accrue to best organized, best resourced, whereas those less organized have less
voice and incur more decisions that are less favourable
also critical of participation because it leads to costs, delays and can be “window-
But argues there is a price to be paid for participation – slows down decision-making
Identifies several types of community interest groups:
o Neighbourhood associations – interested in maintaining/improving life of their
area, and municipalities often have formal consultation mechanisms with them.
in planning act, a provision states that a municipality may proactively consult
with any particular person or group that has a particular interest in planning
matter, which means they may contact a neighbourhood association.
o Issue-oriented groups – organized not on geography but on a particular issue,
e.g. greenbelt conservation or promotion of the arts. Specific ethnic or cultural
issues that transcend a specific geography. G notes that these groups often have
an adversarial relationship with government.
o Identity-specific organizations of social movements, e.g. „Gay movement‟
o Site-specific protest groups – largely a phenomena since the 80s, opposed to
specific things like a garbage dump or halfway house near their neighbourhood.
These are the NIMBYs, more than any other group.
She also identifies a number of factors necessary to making participation meaningful:
o Timing – is committee/council considering a matter which requires a decision in a
short period of time
o Information technologies – what technologies exploited to get information out to
o Participation is affected when it is a mutual learning process
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Legal Mechanisms for Participation
There are 2 remedies: rules/proceedings to systemize input over time; and ability to
specific norms and structural institutions as a force for social coordination
o This provides a way through the law with which we can protect society‟s
1. Constitutional / Statutory Bill of Rights
e.g. Environmental Bill of Rights and Environmental Registry as part of a
framework for consulting public.
2. Participation in Administrative Decision-Making
3. Access to Information Mechanism
How easy it is to get information about the particular meeting/subject.
4. Access to Justice
o Judicial Review
s.273 of Municipal Act – apply to have bylaw quashed for illegality
Traditionally, this is the means by which municipal decisions were
Provides a system to keep the delegated powers in check
Concerned itself with the process of the decision, rather than the decision
In general, courts are not conducive to meaningful participation
o Merits Appeals
This is what the OMB does; intended to be more accessible than the courts
Not everyone has standing to go to court or the OMB; recall that OMB has
the capacity to dismiss applications under s.17(45) if it believes it is
frivolous or vexatious, or appellant failed to make a submission or attend a
hearing/meeting the process
More informal and less adversarial format for hearing disputes
OMB can conduct proceedings by mediation.
o Legal Aid and Intervener Funding
Inventor funding can be gotten through the OEAA or Intervener Funding
Act, as legal actions are expensive and legal aid is not always forthcoming
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The Zoning Power
Municipalities have the power to enact various kinds of by-laws.
The capacity given under the Municipal Act is a general-law making power with
jurisdiction under ss.10-11
By-law making powers are also given under s.34 of the Planning Act; this refers to
o The by-laws authorized under this section may take 2 forms: either list prohibited
activities/uses (or all other uses are therefore allowed), or list permitted
activities/uses and purposes (and all other uses are therefore disallowed).
o The first type tends to be used for multiple-use areas, and the second type tends to
be used for residential areas or uses like schools and churches.
The scope and extent of the by-law power is limited to things like: uses of land,
buildings, conservation, standard-setting, standards, easing congestion, etc.
Note that there are implicit ways in which discrimination exists in the zoning power –
dealt with later (under “discrimination”)
Recall that under s.273 of the Municipal Act, upon application by any person, the
superior court may quash a by-law in whole or in part for illegality
Three Key Assumptions of Zoning:
1. There exists a “best use” of land
o Part of the tradition of rational modernist planning – parceling land and allocating
it to best use; identifying with public interest
2. It is important to separate “incompatible” (best) uses of land
o Can provide a form of segregation in order to segregate different kinds of uses
o 2 kinds of separation important in LUP – separation of home and work
(apparently bad, because then you have to travel) and explicit income/class
separation (and perhaps ethnicity implicitly), i.e. the tendency to say that an area
is zoned residential, but the kind of residences allowed implicit include those who
don‟t have the income to buy the sort of houses permitted
o Consider article re: student housing
3. Comprehensive zoning is not a challenge to the primacy of private property rights
o Patrick McCaulson
o What planning law does, according to this perspective, is that some of the use and
developments rights that are part of the bundle of property rights are regulated in
the public interest, but those rights remain held by the property owner, just the
content of those rights are restrained by zoning
Statutory Regime for Zoning under s.34(1)
Scope and extent of the zoning power is set out in ss.34(1-10)
Rule making procedures are set out in ss.34(10-18)
o Participation in public meeting and/or open house – s.34(14)
o Notice of passing of by-law under s.34(18)
OMB Appeals governed by ss.34(11), (19-34)
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Rule-Making under s.34(1)
34 (1) Zoning by-laws may be passed by the councils of local municipalities:
1. For prohibiting the use of land, for or except for such purposes as may be
set out in the by-law …
2. For prohibiting the erecting, locating or using of buildings or structures for
or except for such purposes as may be set out in the by-law …
4. For regulating the type of construction and the height, bulk, location, size,
floor area, spacing, character and use of buildings or structures to be erected
or located … and the minimum frontage and depth of the parcel of land and
the proportion of the area thereof that any building or structure may occupy.
6. For requiring the owners or occupants of buildings or structures to be
erected or used for a purposed named in the by-law to provide and maintain
loading or parking facilities on land that is not part of a highway.
Quasi-Licensing Power –
Certificates of Occupancy
s.34(6) A by-law passed under this section may provide for the issue of certificates
of occupancy without which no change may be made in the type of use of any land
covered by the by-law or of any building or structure on any such land, but no such
certificate shall be refused if the proposed use is not prohibited by the by-law.
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Statutory Rule-Making Procedures – ss.34(12) to 34(18)
Notice of original proposal – to public and public bodies
Alternate procedure is provisions in official plan
Notice of modification to proposal
Notice of OMB dismissal power
o Recall that if you fail to participate, may lose right of appeal to OMB
Council‟s decision to adopt a by-law is final if there is no appeal
o Note that this is different from the arrangements regarding OPs, because OPs
require approval from approval authority unless exempt, whereas ZBLs do not.
Another difference between the procedure for ZBLs and for OPs/OPAs is that the
standard of information to be provided for the public is higher for by-laws than for OPs;
for OPs, s.17 puts an obligation on the city council to make available adequate
information, including copies of the proposed plan. For ZBLs, the council must make
available sufficient information for the public to understand generally the zoning
proposal, required under s.34(12)
Under s.34(19), the public has 20 days in which to appeal a by-law once notice has been
o In theory, anyone can appeal the ZBL, but if you participate / make written
submissions / attend hearings or open houses, you may lose your appeal rights
under O.Reg 545/06
In 2006, changes were made to the provisions of the Planning Act that deal with zoning
by-laws and official plans:
o Now, s.26 requires that every five years that be a review of the official plan for
the purpose of updating it. Note that the primarily reason to update an OP is to
make sure it is consistent with Provincial Policy Statements, Provincial Interests,
and Other Plans.
o s.26(9) says that no later than 3 years after a revision to the OP comes into effect,
the municipality must amend all their zoning by-laws to ensure that they conform
to the new official plan
Recall that the Cadillac case makes it clear that “conform” has 2 distinct
meanings, precise meaning and ambit meaning, and it is the ambit
meaning that should be applied
The Davison case says that there is an implied obligation under the
Planning Act to eventually adopt by-laws that do comply with the official
plan. In that case, a 2-year delay in doing so was considered reasonable;
but now there is a 3-year legislation period of time. However, this applies
only to s.34 zoning by-laws, not other kinds of by-laws under the
Municipal Act, and it also does not apply to official plan amendments.
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Spraytech v. Hudson (2001) (SCC)
Note that this case does not deal with a ZBL, but instead the general by-law making
power, but it helps highlight the scope and capacity for by-laws generally to be a tool for
regulation, and to understand the relationship between municipal by-laws and the
province. Note that the Telus case, which follows, looks at the relationship between the
municipality and the federal government.
When looking at s.34 by-laws, it is always necessary to consider how it dove-tails with
what the province allows, and what the federal government‟s jurisdiction is.
This Case has 5 Important Aspects:
1. General welfare" or "omnibus" provisions in municipal legislation
2. Inconsistency with provincial or federal law?
3. Principle of subsidiarity
4. Environmental protection is a "fundamental value" in Canadian society
5. Incorporation of international law principles
Facts: Town of Hudson passed a by-law which prohibited the use of pesticides in the
municipality except for certain enumerated purposes. Appellants were landscaping/lawn
company. Spraytech was charged with using pesticides in violation of the by-law;
however, they held certain provincial licenses and were using federally-approved
pesticides, i.e. what they were doing was fine at provincial and federal level. Spraytech
argued that municipality did not have the authority to pass such a by-law, and even if
they did have such authority, it was inoperative because it was against the provincial and
federal legislation. Town argued that it had jurisdiction under “peace, order, good
government, health and general welfare” capacity to create by-laws. Further argued that
by-law did not conflict with any federal or provincial law, and that it was simply
implementing the precautionary principle, which was a principle of international law.
Issues: Does a municipality have the authority to enact a by-law which prohibited the use of
pesticides within its territory save for certain purposes? If so, is it rendered inoperative
because it conflicts with provincial and federal laws?
Decision: SCC upheld the by-law.
Reasons: Found that the provision the municipality relied on allowed them to take measures that
would protect the environment and the health of the community by prohibiting the non-
essential use of pesticides within the town. Distinguished from Greenbaum, since in this
case the municipality was relying on a general power to enact the by-law, and in that case
they tried to rely on a specific power. SCC also found that there was no conflict between
the by-law and the federal/provincial legislation. The relevant test in looking at conflicts
is the impossibility of dual-compliance, or express contradiction test – compliance
with one would necessitate defiance of the other. Thus, the only way to have an
operative conflict was if the government said that you could not use a specific pesticide
in Canada/Ontario, and then the municipality says that you can use it. Thus, the SCC in
this case has standardized the question as to how to examine a potential conflict between
provincial and municipal law, and what happens between municipal and federal law,
based on the subsidiarity principle. The town is best placed to determine what the
health and public needs of the community were.
Continued (Quotes from Case)
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Subsidiarity Principle –
“The case arises in an era in which matters of governance are often examined
through the lens of the principle of subsidiarity. This is the proposition that law-
making and implementation are often best achieved at a level of government
that is not only effective, but also closest to the citizens affected and thus most
responsive to their needs, to local distinctiveness, and to population diversity.
The so-called 'Brundtland Commission' recommended that "local governments
[should be] empowered to exceed, but not to lower, national norms."
“Tradition of strong local government has become an important part of the
Canadian democratic experience. This level of government usually appears
more attuned to the immediate needs and concerns of the citizens.”
“The context of this appeal includes the realization that our common future,
that of every Canadian community, depends on a healthy environment. In the
words of the Superior Court judge: "Twenty years ago there was very little
concern over the effect of chemicals such as pesticides on the population. Today,
we are more conscious of what type of an environment we wish to live in and
what quality of life we wish to expose our children [to]." This Court has
recognized that ".... environmental protection [has] emerged as a fundamental
value in Canadian society."
“The protection of the environment is a major challenge of our time. It is an
international problem, one that requires action by governments at all levels."
“Kennedy J. correctly found that the Town Council, "faced with a situation
involving health and the environment", "was addressing a need of their
community." In this manner, the municipality is attempting to fulfil its role as
what the Ontario Court of Appeal has called the "trustee of the environment."
Incorporation of International Law
“As states in Driedger on the Construction of Statutes …:‟the legislature is
presumed to respect the values and principles enshrined in international law,
both customary and conventional. These constitute a part of the legal context in
which legislation is enacted and read”
“In order to achieve sustainable development, policies must be based on the
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Telus Communications v. Toronto (City) (2007) (Ont. SCJ)
This case demonstrates how precarious municipal land-use planning bylaws are over
federally regulated matters
Whereas Spraytech was a big win for municipalities, this case was a large set back.
Facts: Municipality passed by-laws to permit site plan controls over telecommunications towers.
However, telecommunications is a federally-regulated industry. Federal legislation in
this area is designed to regulate them as businesses, not with regard to planning issues.
Telus sought to quash the by-laws or have them declared as being of no force and effect
with regards to Telus‟ antennas. Toronto argued that the site plan controls only
minimally affected Telus and the by-law came within the auspices of planning controls.
Issue: Could the municipality regulate Telus on how high/where their antennas could be placed?
Decision: Such by-laws were outside the scope of the municipality‟s jurisdiction.
Reasons: The court decided in favour of Telus, and said that they must distinguish between
municipal laws that apply directly to a federal undertaking, and those that apply
only incidentally. In this case, the Court concluded that the municipal law was applying
indirectly to a federal matter. The test is whether the indirect “touching” upon a
federally-regulated sphere impaired the undertaking. Court found that the by-law did
impair Telus‟ ability to undertake its undertaking, and thus the City, through the by-law,
would be able to control the location, height, etc. which would negatively affect Telus‟
wireless network. Court also noted that council members reviewing plans were not likely
to be experts in telecommunications and thus had a propensity to make poor decisions or
not understand the repercussions of their decisions. Found that the by-laws had the
potential to harm Telus‟ business by subjecting it to lengthy delays for approval of new
towers. Court thus read-down the by-laws in question, so that they have no force and
effect with regards to the erection of antennas by telecommunications providers.
Note: Reading-down is not the same as quashing a bylaw; it merely denies its capacity to apply
in certain circumstances.
Note also that the Court uses a different analysis than in Spraytech- in that case, the issue was
whether there was an operative conflict, and here the Court uses a different way to
examine the issue of whether the by-law encroaches on federal jurisdiction.
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Village of Euclid v. Ambler Realty (1926) (AMERICAN)
This was the first case in North America where comprehensive zoning was endorsed and
approved by the Courts; establishes the legitimacy of comprehensive zoning for North America,
over the objections of private landowners. In this case, Ambler sued the Village because they
had passed a by-law which reduced the value of property owned by Ambler by restricting its use.
The purpose of that ZBL was to protect the village from development pressures.
Euclid argued that the police power (inherent authority of every state to enact laws that protect
and promote public welfare, safety, health and morals) allowed them to enact such a by-law.
ZBL was viewed by the court as a legitimate exercise of the police power.
What Euclid was actually protecting its citizens from were nasty, parasitic minorities who lived
in apartment buildings. Thus, while it was a “taking” under the police power, it was not the kind
of taking that would require compensation as the damages were too speculative.
Court weighed the public welfare value against the private interests of Ambler. If Ambler was to
succeed by showing lack of due process, must show that ZBL was arbitrary, discriminatory, and
Jay Wickersham – “Jane Jacob‟s Critique of Zoning: From Euclid to Portland and
Article highlights key tenets of Jane Jacob‟s theory – economic liberty is good to allow
small business to flourish, importance of physical design and streetscaping, architectural
attractive, high-density good, mixed-use better than single, old buildings should be
preserved and recycled, and democratic somethingsomething
Article is good as a pithy summary of Jane Jacobosity – see page 501
Decision in Euclid encourages urban sprawl and low-density development and is too
functionalist – destroys soul and culture of a city.
Heritage legislation in Ontario is supportive of Jane Jacobs philosophy
“Greatest flaw in city zoning is that it permits monotony.”
Random Other Kinds of By-Laws
Holding By-laws: prohibits development until certain conditions have been satisfied
Density Bonus By-laws: permits intensification of height, for example, so long as
developer makes off-setting measures such as more community facilities
Interim Control By-law: temporarily stalls development until a condition is satisfied
Temporary Use By-law: for up to 2-3 years allows a specific land use to be tolerated
before it comes to an end
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Implications of Zoning for Landowners – Down-Zoning & NCUs
Down-Zoning deals not with existing uses, but future uses, by changing the allowable
use of that parcel of land (e.g. from commercial to parkland)
o Where you have a change in land-use rules, it not only down-zones the land, but
creates a non-conforming use.
Non-Conforming Uses is a use inconsistent with the zoning rules; however, they are
generally protected (“legal” non-conforming use).
When a property is down-zoned, there are generally three legal remedies:
1. Stop the legal change from going ahead by vetoing the by-law.
You may challenge the by-law on the grounds of bad faith, improper
purpose, discrimination, procedural defects in the adoption of the by-law,
by-law made without jurisdiction (e.g. encroachment on federal
jurisdiction) or contrary to PPS, etc.
2. Get an exemption from the change
For example, by applying for a minor variance under s.45 claiming special
3. Get compensation for the down-zoning.
This is not really possible in Canada, but is more readily available in the
USA due to constitutional protection of private property rights.
Compensation for Expropriations
Under the Expropriations Act –
1. "Expropriate" means the taking of land without the consent of the owner by an
expropriating authority in the exercise of its statutory powers;
5.(1) the approving authority in respect of an expropriation shall be the Minister
responsible for the administration of the Act in which the power to expropriate is
granted, except that,
(a) where a municipality or a local board thereof, other than an elected
school board, expropriates lands for municipal purposes, the approving
authority shall be the council of the municipality; and
13.(2) Where the land of an owner is expropriated, the compensation payable to the
owner shall be based upon,
(a) the market value of the land;
(b) the damages attributable to disturbance;
(c) damages for injurious affection; and
(d) any special difficulties in relocation,
14.(1) The market value of land expropriated is the amount that the land might be
expected to realize if sold in the open market by a willing seller to a willing buyer.
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Compensation under the Ontario Heritage Act
63. Where property is designated under section 52 and no agreement as to the
payment of compensation has been reached by the Minister with the owner, the
owner shall be entitled to compensation for personal or business damages for the
period provided for in the order designating the property, and the Expropriations Act
with respect to the negotiation, payment and fixing of compensation applies with
necessary modifications as if the designation and the resulting restrictions imposed
by this Act were an expropriation of rights
68.3(1) Except as may be provided under this Act, no owner of property or other
person is entitled to compensation in respect of any designation, order or decision
made by a municipality, the Minister, Review Board or Board under this Act
Note that designation under this Act provides severe restrictions as to what you can do with your
property – but you cannot get compensation for the restrictions placed on your property.
Compensation under the Greenbelt Act (or lack thereof)
19(2) No costs, compensation or damages are owing or payable to any person and no
remedy, including but not limited to a remedy in contract, restitution, tort or trust, is
available to any person in connection with anything referred to in subsection (1).
Note that 19(1) encompasses inter alia the making of Greenbelt Protection Plans
Material Handling Problem Solvers Inc. v. Ontario (MMAH) (2002) (OMB)
While municipalities have the authority to down-zone properties, there are guidelines developed
by the OMB in order to shape that. There are 2 important principles: municipality must employ
proper planning principles and proper procedure, and the loss to the owner of a down-
zoned property is to be weighed against the benefit to the community.
“Down-zoning is not by itself a compensable taking. In… Ontario we do not compensate for
loss, nor do we tax the betterment or gain achieved by a favourable planning approval”
This case involved an area of land that the owner wanted to develop into a gold course, but it had
been identified as a provincially significant wetland. OMB found that the down-zoning of the
provincially-significant wetland was fairly made on the basis of a “compelling public interest
“Nevertheless, the Board and the courts have developed several principles applicable to the
question of downzoning.... [D]ownzoning should not be considered lightly or undertaken in bad
faith or for wrong reasons. Furthermore, it is well-established that zoning and planning
designations cannot be used to create public parks or publicly accessible open spaces. This
requires that the lands be legally acquired by consent or through due process, and that fair
compensation be paid. And finally it should only be undertaken with care and with a strong and
compelling public justification following a very careful consideration of the impact of the
reduced rights of the landowner.”
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R v. Gibson, ex Porte Cromiller (1959) (Ont. HCJ)
The issue in this case was whether the general zoning power allowed for the exclusion of all
uses. Court found that, while s.34(1) authorizes the prohibition of the use of land for certain
purposes, it does not allow for absolute prohibition – you cannot down-zone the use of land to
nothing; rather can only limit the type of buildings, type of land-use, etc.
Re City of Coquitlam and Karamanolis (1977) (BC Superior Court)
The issue in this case was whether a by-law could stand that has the effect of prohibiting all uses,
even if it does not explicitly do so.
Court stated that municipalities do have the power to enact this kind of by-law, but in this case it
was done in bad faith by the council, and by bad faith the Court is saying that there was a
purpose or motivation that one is not prepared to tolerate as acceptable. The by-law was
discriminatory and in bad faith, not properly motivated, etc. and thus the Court did not allow this
particular down-zoning law to be upheld.
By-laws that allow no uses will not be tolerated.
City of Vancouver v. Simpson (1976) (SCC)
“The court below found that the refusal of the right to subdivide was a derogation of
common law rights. The point is, however, is that it was the Land Registry Act which
curtailed common law rights. The enactment of that statute took away a free right to
subdivide. The landowner has no right to subdivide save subject to the approval of the
approving officer, who is required by the Act to determine if the contemplated
development would be against the public interest”
This decision showed great deference to the municipality – should not interfere lightly with the
decision of the municipality in these circumstances, as they are seeking to create nice planning
goals. Discretionary powers provide a reason for even more deference to be given. There was
no evidence of bad faith, discrimination or malevolence. Rejected argument that municipality
trying to reduce value of property for when eventually expropriated it (for parkland).
Yuen v. Oak Bay (1994) (BCCA)
This case involved the land with the Chinese cemetery, where they wanted to build a residential
development but through successive ZBLs the land was eventually down-zoned to only be used
as a cemetery, even though parts of it were not suitable for that purpose.
No bad faith or malevolence, and will not quash it out of deference for municipality. Case
provides more indication that Courts are hesitant to interfere with the discretionary powers of
municipalities – it is “against the public interest” to quash by-laws.
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Arguments for and Against Compensatory Remedies
Rationales for Remedies –
Conceptualization of Individual Rights vs. Community Claims
Community should be required to consider the full cost of lost opportunities and thus be
responsible for compensating landowner; tension between individual & community rights
Inefficient allocation of resources and having to pay for this will ensure that land use
planning rules are efficient – creates a check on planners/regulators, who will therefore
only impose restrictions where the public gain outweighs the private cost. This is
essentially a cost-benefit analysis.
public would pay for the compensation as the beneficiaries of less development/less
sprawl through higher taxes
This proposition is dependent on the acceptance that individual property rights include a
right to develop your property as you wish.
2nd argument is that if you have a system that takes away individual property rights, it
could hinder investment and further development because people will not want to invest
in things if they know that they may loss the ability without compensation
Rationales against Remedies –
Contingency of „Private‟ Property Claims
Your private property rights as a landowner do not exist outside of the public planning
system. Your rights from the beginning are defined by what the public regulations allow
you to use with your land. The starting point is that you never had those rights in the first
place; instead all rights were contingent on land use planning and environmental law.
Property rights are constrained by the interests of the community.
Deference to Policy and Distributional Goals of Land Use Regulation
Deference to policy and distributional goals of land use regulation
City of Vancouver v Simpson (1976) and Yuen v Oak Bay (1994) (previous page)
Public planning is a democratic process and provides a way to deal with NIMBYism.
Private landowner is selfish and evil, and public interest is enlightened and benevolent.
Public, accountable and democratic process is preferable to evil landowners. Both these
decisions had the municipality being successful in down-zoning without compensation.
Valuation problems – Pragmatic Compromise
There may be arguments for compensation, but shouldn‟t do it because it is too complex
and difficult – impossible to measure quantum of damages, problems with valuation.
Another problem is identifying who would be the recipient of any benefit – would require
the particular individuals who suffer to be compensated; so why should taxpayers have to
compensate others for lost opportunities in the Greenbelt?
Private development imposes environmental externalities – e.g. climate change, loss of
biodiversity, and creates other kinds of costs to the community
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Zoning for Conservation
N.B. Guest Speaker –
John Taylor, Senior Planner with the Provincial Planning Policy Branch of MMAH
A Greenbelt Plan and a Growth Plan are similar and interact a lot.
There are competing interests for the limited amount of land in Southern Ontario, and
much of the newer legislation is designed to deal with that problem.
o There are also many other major issues facing modern Ontario, including: urban
sprawl, traffic congestion, climate change, air and water pollution, and the loss of
greenspace and farmland to development
Note that there are 2 distinct approaches between the Oak Ridges Moraine Act and the
Greenbelt Act – one is more policy-oriented, and the other is more practical, with plainer
English, and thus more open to interpretation
As a response to urbanization and environmental concerns, the government pursued a
multi-pronged approach of new legislation, regulation and policy
o Amended the Planning Act With Bill 26 – added the stronger “be consistent
with” (as opposed to “have regard for” standard for PPS, with no right of appeal
for urban expansions
Further amended with Bill 51 – OMB must have regard to municipal
decisions, and no appeals of employment land conversions
o Updated the Provincial Policy Statement – stronger policies regarding
intensification, employment land conversion, development only where supported
o Implemented the Greenbelt Act and Plans
o Implemented the Places to Grow Act and Growth Plans
o Implemented other related initiatives, such as the Clean Water Act, and protection
for Lake Simcoe
Building a Greenbelt – The Process:
December 2003: Greenbelt Protection Act introduced in the legislature, established
study area and moratorium on development
February 2004: multi-stakeholder Greenbelt Task Force appointed to develop
recommendations and hold public consultations
August 2004: the Task Force provided its advice and recommendations based on the
public consultation process
October 2004: Proposed Greenbelt Act (Bill 135) introduced and draft Greenbelt Plan
released to public for consultation
Fall 2004: Extensive consultations: government met with the public, municipalities and
February 2005: The Greenbelt Act, 2005 became law. Cabinet designated a Greenbelt
Area, and the final Greenbelt Plan was released
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The Greenbelt Act, 2005
The Greenbelt Act became law on February 24, 2005, and established:
o Designation of a Greenbelt Area by Cabinet (includes existing Oak Ridges
Moraine, Niagara Escarpment and new Protected Countryside)
o Greenbelt Plan by OIC released Feb. 28, 2005 (ORM and Niagara Escarpment
continue to prevail)
o Mandated 10 year review, timing coordinated with the Oak Ridges Moraine
Conservation Plan and Niagara Escarpment Plan (set to happen in 2015)
o Decisions on Planning Act applications must conform to Greenbelt Plan under
s.7(1), and Greenbelt Act prevails in case of conflict (s.8(1))
o Municipalities must amend planning documents to conform to the Plan
o Only the Minister can amend the Plan
o Cabinet has power to pass regulations (e.g. transition, harmonization)
o Minister has power to pass regulations (e.g. requiring tree-cutting/site-alteration
o Go forward approach to transition of matters
o Complimentary changes to the Oak Ridges and Niagara Escarpment Acts
o Minister to create a Greenbelt Council to provide advice
o Note that there are provisions in this Act that allow existing uses to continue.
Structure and Relationships of the Greenbelt Act
Comprises the Oak Ridges Moraine Conservation Plan, Niagara Escarpment Plan and
Protected Countryside Areas
The policies of the Oak Ridges Moraine Plan and Niagara Escarpment Plan continue to
apply, the Protected Countryside contains the new policy standards
Builds on PPS and must be read in conjunction with municipal official plans
Provides higher standards for the Agricultural System and Natural System
Greenbelt Plan and Growth Plan
Growth Plan for the Greater Golden Horseshoe released June 16, 2006
The Growth Plan surrounds and complements the Greenbelt by addressing where growth
should occur outside of these protected areas
o Direct growth to existing urban growth centres
o Provide strict criteria for urban expansions
o Promote intensification and higher densities in growth centres
o Identify and support a transportation network that connects the growth centres
o Plan for appropriate hard and soft infrastructure to support this growth pattern
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Vision for the Greenbelt
The Greenbelt is a broad band of permanently protected land that will:
o protect the agricultural land base and support agriculture;
o give permanent protection to natural heritage and water resource systems; and
o Provide for a diverse range of economic and social activities associated with rural
communities, agriculture, tourism, recreation and resource uses.
Greenbelt Plan Policies
Geographic Specific Policy Areas – s.3.0
o Agricultural System (Specialty Crop, Prime Agricultural and Rural Areas)
o Natural System (Natural Heritage System, Water Resource System, Features)
o Settlement Areas (Towns/Villages, Hamlets)
General Policies – s.4.0
o Includes Infrastructure, Natural Resources and Lot Creation
Specialty Crop Area Policies
Comprised of Niagara Peninsula Tender Fruit and Grape Area and Holland Marsh
Highest level of protection in Plan
No urban expansions
No new non-agricultural uses permitted
Permits full range of normal farm practices and agriculture-related and secondary uses
Prime Agricultural Area Policies
As defined by municipal OPs
No new non-agricultural uses (and no redesignations)
Allows a full range of normal farm practices (including agriculture-related and secondary
Rural Area Policies
Allows wide range of recreational, tourism, institutional and resource-based
commercial/industrial uses serving rural resources and agricultural sectors
Permitted uses are those identified in municipal official plans, except for
o No new multiple units or lots for permanent residential dwellings (e.g. more than
3 lots through either plan of subdivision, consent or plan of condominium)
Natural Heritage System Policies
Full range of normal agricultural uses are permitted
New development in the natural system must demonstrate:
o No negative impacts on features and functions
o Connectivity between key features & their functions
o Minimizes removal of vegetation
o Minimizes disturbance and impervious surfaces (mineral aggregate operations and
golf courses have more specific standards)
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Water Resource System Policies
Municipalities are expected to complete watershed plans
Sensitive water resource areas (wellheads, vulnerable aquifers) to be protected from
incompatible land uses
Municipalities are encouraged to protect these wellhead and vulnerable aquifers in their
Natural Heritage and Hydrologic Features Policies
Development is not permitted within key natural heritage and hydrologic features
(exception for existing farm buildings and structures and non-farm dwellings)
New development within 120m of a key features requires a environmental study to
identify an appropriate buffer and how connectivity will be maintained
The minimum buffer for key hydrologic features, fish habitat and significant woodlands
is 30 m (exception for land used for agricultural purposes)
Settlement Area Policies
Settlement areas outside the Greenbelt cannot expand into the Greenbelt
Modest expansions of Towns/Villages considered at 10 year review provided:
o Sustainable local municipal sewage & water (no new Great Lake-based servicing,
unless public health concern with existing servicing)
o Proposed growth complies with any applicable watershed plan
o Settlement does not extend onto Specialty Crop Areas or the NHS
Infill and intensification of Hamlets is permitted; minor rounding out of these areas will
be considered at the time of official plan conformity
Proposals for municipally initiated settlement area expansions can be considered at
o Council resolution prior to Dec 16, 2003
o Supportive background studies or expenditure of municipal funds
o Does not extend into NHS or Specialty Crop
o Keeps existing character of the settlement area
EA approved infrastructure is permitted
No expansion of Town/Village on partial services
EA‟s for sewer and water to support Town and Village expansions must be completed
prior to official plan being amended
Extension of sewer/water outside of a settlement allowed to serve adjacent, existing uses
Existing uses along water pipelines may connect if within service area identified by EA
New and expanding infrastructure must:
o Minimize negative landscape impacts & disturbance
o Maximize existing capacity
o Avoid key features where practicable
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Natural Resource Policies
Renewable and non-renewable resources are permitted across the Greenbelt (e.g. forestry,
water taking, aggregates)
New aggregate operations are not permitted in some features and within Niagara
Specialty Crop lands between Lake Ontario and the NEP Area (but existing operations
may potentially expand in these areas)
New aggregate operations must demonstrate no negative impacts on water resources or
natural system linkages and ensure more expeditious rehabilitation
Lot Creation Policies
Lot creation in Specialty Crop and Prime Agricultural Areas is only permitted for:
o Agricultural uses, minimum lot size of 40 acres in Specialty Crop Areas and 100
acres in Prime Agricultural Areas
o Existing and new agriculture-related uses
o Surplus farm dwellings from a farm consolidation
In Rural and Settlement Areas, lot creation permitted as per official plans (subject to
Policy 3.1.4 of the Greenbelt Plan)
Implementation achieved primarily through legislated municipal actions
o Ensuring decisions on planning applications conform to the Plan
o Amending their planning documents to incorporate Plan policies and mapping (5
Mandated 10 year review
Future regulations (tree-cutting and site-alteration)
Support to municipalities through training, data, meetings and hearings
o An arms length body with 9 members representing a cross-section of academia,
municipalities, environmental NGO‟s, development industry and agriculture
o Provides advice to the Minister on implementation issues, performance measures,
potential amendments and the 10 year review
o Independent, non-profit body created by the government and given $25 million in
o Use the money through grants and donations to promote, educate, research and
raise awareness of the Greenbelt
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Growing the Greenbelt
On February 21, the Minister announced a consultation on draft criteria to be used to
consider municipal requests to grow the Greenbelt
Flows from a previous recommendation of the Greenbelt Council
This process will not limit the Minister‟s ability to propose amendments and any
amendments will still follow the legislated process
This process will also not result in reductions to the area of the Greenbelt, changes to
Greenbelt policies, or take the place of the 10 year review
Greenbelt Plan and Growth Plan – Two Sides of the Same Coin
Greenbelt Plan technically came first, with the Growth Plan coming the next year.
Growth Plan directs growth to existing urban centres and provides strict criteria for urban
Planner-Dude thinks there are 12 features in the Plan, and development cannot happen
within those specific features, with an exception for agricultural development.
o Cannot have development within 120m of a feature without doing a
study/evaluation to ensure that any development within that area can be done
without negative impact to that feature.
There is an explicit restriction on existing urban areas expanding into the Greenbelt.
o However, this will be reviewed as part of the 10-year review, and if there is a
pressing need for expansion, then in order to get permission the municipality must
be able to demonstrate that there is adequate serving (that doesn‟t come from the
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Conservation Authorities Act, 1946
This is an example of legislation trying to follow a bioregional scale, i.e. reflect natural
parameters, not artificial urban parameters (e.g. by following the lines of a watershed)
Note that this Act does not refer to the Planning Act, and is instead used to regulate
activities where municipal OPs and by-laws have failed to do so.
To establish regional conservation authorities (36 today) with jurisdiction over natural
areas based on watersheds
o Establishes a mechanism through which conservation authorities can be set up to
have jurisdiction over a natural area confined by a watershed, and have authority
over matters relating to that watershed.
To conduct multi-purpose planning for a dozen or more river basins in the province
Under supervision of Minister of Natural Resources
20 (1) The objects of an authority are to establish and undertake, in the area
over which it has jurisdiction, a program designed to further the conservation,
restoration, development and management of natural resources other than gas,
oil, coal and minerals.
Ministry of Natural Resources
MNR retains the provincial responsibility for the development of flood, erosion and
hazard land management policies, programs and standards on behalf of the province
pursuant to the Ministry of Natural Resources Act.
Where no conservation authorities exist, MNR provides technical support to the Ministry
of Municipal Affairs and Housing
Toronto and Region Conservation Authority
protection, enhancement, and regeneration of natural resources on a watershed basis
(covering 3,500 sq kms)
sound environmental information and advice to promote good land management practices
community action on environmental projects
outdoor recreation opportunities on 13,000 hectares of open space, forest lands, and
conservation education and heritage programs through our outreach education programs,
residential and day-use Outdoor Education Centres and Black Creek Pioneer Village
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Jurisdiction/Powers of Conservation Authorities
21.(1) For the purposes of accomplishing its objects, an authority has power,
(a) to study and investigate the watershed and to determine a program whereby the natural
resources of the watershed may be conserved, restored, developed and managed;
(b) for any purpose necessary to any project under consideration or undertaken by the
authority, to enter into and upon any land and survey and take levels of it and make
such borings or sink such trial pits as the authority considers necessary;
(g) to enter into agreements with owners of private lands to facilitate the due carrying out
of any project;
(h) to determine the proportion of the total benefit afforded to all the participating
municipalities that is afforded to each of them;
(i) to erect works and structures and create reservoirs by the construction of dams or
(j) to control the flow of surface waters in order to prevent floods or pollution or to reduce
the adverse effects thereof; …
(n) to collaborate and enter into agreements with ministries and agencies of government,
municipal councils and local boards and other organizations;
(o) to plant and produce trees on Crown lands with the consent of the Minister, and on
other lands with the consent of the owner, for any purpose;
(q) generally to do all such acts as are necessary for the due carrying out of any project.
Regulation Powers of Conservation Authorities
28.(1) Subject to the approval of the Minister, an authority may make regulations
applicable in the area under its jurisdiction,
(a) restricting and regulating the use of water in or from rivers, streams, inland lakes,
ponds, wetlands and natural or artificially constructed depressions in rivers or streams;
(b) prohibiting, regulating or requiring the permission of the authority for straightening,
changing, diverting or interfering in any way with the existing channel of a river, creek,
stream or watercourse, or for changing or interfering in any way with a wetland;
(c) prohibiting, regulating or requiring the permission of the authority for development if,
in the opinion of the authority, the control of flooding, erosion, dynamic beaches or
pollution or the conservation of land may be affected by the development;
(10) No regulation made under subsection (1),
(a) shall limit the use of water for domestic or livestock purposes;
(b) shall interfere with any rights or powers conferred upon a municipality in respect of the
use of water for municipal purposes;
(c) shall interfere with any rights or powers of any board or commission that is performing
its functions for or on behalf of the Government of Ontario; or
(d) shall interfere with any rights or powers under the Electricity Act, 1998 or the Public
Utilities Act. 1998
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What is the Conservation Authorities Act‟s Relationship to the Planning Act?
The Conservation Authorities Act is used to regulate activities in those cases where
municipal official plans have not been updated and in those cases where the municipal
plan may allow the activity subject to certain requirements which can be addressed
through the Conservation Authorities Act approval process, e.g. reg. below.
Ontario Regulation 170/06: SOUTH Nation River Conservation Authority
2.(1) Subject to section 3, no person shall undertake development, or permit another
person to undertake development in or on the areas within the jurisdiction of the
Authority that are, …
(e) other areas where development could interfere with the hydrologic function of a
wetland, including areas within 120 metres of all provincially significant wetlands, and
areas within 30 metres of all other wetlands, but not including those where development
has been approved pursuant to an application made under the Planning Act or other
public planning or regulatory process.
Memorandum of Understanding between Ministry of Natural Resources (CAs) and
MMAH & Municipalities (2001)
Provides for conservation authorities to review development proposals under the
Planning Act, and provide comments to MMAH, to ensure matters detailed in section
3.1 (Natural Hazards) of PPS are addressed.
Conservation authorities to provide technical advice to municipalities
Ottawa v. Chief Building Official (2003) (Ont. SCJ) – pg. 545
This case was a setback for the champions of environmental conservation. Involved a dairy farm
that wanted to be converted into an industrial pig farm and at the time there was a lot of public
noise about pig farms – post-Walkerton/contamination/etc. Had gotten approval for a pig farm
of a reduced sauce, because the building officials felt there was an obligation to issue a building
permit because the plan otherwise conformed to the requirements of the Building Act.
Municipality did not like this and brought an action against their own building official to stop
the project. Ottawa argued that the denial of approval would be in line with other environmental
laws in the province, and that the MOE was about to issue new standards. Issue – do these kinds
of environmental laws qualify as the „applicable law‟ that the building official should have
Court found that these laws are not „applicable laws‟ under the Building Code Act. Finds that a
number of laws are not relevant under the definition of relevant law under Building Code Act; in
general, environmental laws do not deal with construction/demolition issues as defined by the
Building Code Act. s.71 of Planning Act prevails in the event of inconsistencies with any other
Act; however, government can introduce legislation that says it prevails over the Planning Act.
One of these pieces of legislation that prevails over PA is the Greenbelt Act.
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Basic protection for NCUs found in s.34(9)
Provisions regarding expansion and enlargement of NCUs found in s.34(10)
Powers of the committee of adjustment set out in s.45(2)
34(9) Excepted lands and buildings –
No by-law passed under this section applies.
(a) To prevent the use of any land, building or structure for any purpose
prohibited by the by-law if such land, building or structure was lawfully used on
the day of the passing of the by-law, so long as it continues to be used for that
Essentially, a by-law preventing specific uses will not prohibit a use if it was lawfully
used in that manner when the by-law was enacted, so long as the property continues to be
used for that particular use.
Some argue that this system permits hole of impermissible uses that are grandfathered,
despite being contrary to public policy.
o Creates an inequitable situation where some people have to comply with the rules,
and others do not.
Richardson thinks that we should make NCUs run with the person, not the land – i.e. if
you have sold the property, the new landowner would not enjoy NCU protection.
Note that a lawful non-conforming use under the Planning Act does not imply that the
use is lawful under other acts, e.g. environmental protection legislation
Definition and Scope of Protection for NCUs
The “rights” enjoyed by a NCU depend on how broadly or narrowly the use is defined.
In consider NCUs, there are 3 questions that must always be asked:
1. Is there an established use?
2. Has the use been interrupted?
3. Can the use be changed, expanded or intensified?
Stupid New Zealand Resource Management Act, 1991 – better?
10.(1) Land may be used in a manner that contravenes a rule in a district plan or a
proposed district plan if---
(a) The use was lawfully established before the rule became operative or the
proposed plan was notified; and
(b) The effects of the use are the same or similar in character, intensity, and scale
to those which existed before the rule became operative or the proposed plan
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Establishing an Established Use
When dealing with NCUs, the first question that must always be asked is whether there is
an established use which can get protection under s.34(9).
o Note that these issues are heavily facts-specific.
Re Hartley and City of Toronto (1924) (OCA) – Naughty Lightskirts Case
Facts: Downtown Workers Association carried out the work of providing group homes for young women
who were sent there by parents or the juvenile courts. Needed a better building so they decided to
buy a new building with a more suitable location for developing and expanding the home.
Agreement in 1923 for the purchase of a residential premise. A month later, entered into
possession of that property and a matron and 3 girls were sent to live there. A month later the
Toronto passed a by-law that would not allow for that use. OMB then gave approval for that
bylaw (because back then they needed to approve bylaws). By-law was passed due to pressure
from the community not to allow that type of home there – NIMBYism and prejudice. DWA
went to get approval for renovations and were denied building permit. Note that after matron and
3 girls moved into home, they then left in order to allow the home to be renovated.
Issue: Was there an established use at the time the bylaw was passed? Does the presence of 1 matron and
3 naughty girls constitute an established use, or is it merely a transitory use because they soon
Decision: Established use at time of by-law; use as a group home is a legal NCU.
Reasons: Court relied on intention for determining if there was an established use, i.e. looked at what the
owners intended. OCA upheld the reasoning of the lower court in relying on the fact that the land
was bought solely with the intention of setting up a group home. Thus, occupation by only 1
matron and 3 girls was their intention, and the fact that the home was vacant while under
renovations does not matter because there was no other purpose contemplated for the property.
Looked for good faith and the intention of the owner to establish that it was a use that could be
protected under s.34(9). Lower judge also expressed some concern because it was a charitable
institution. OCA also put emphasis on intention – use is protected when user has taken
possession of a building and has done everything possible, while acting in good faith, to
establish the use before the by-law is passed. Thus, a transitory or partial use, with an
unfailingly clear intention, is sufficient to demonstrate an established use.
Central Jewish Institute v. Toronto (City) (1948) (SCC) – Jewish School
Facts: The Central Jewish Institute wanted to buy a school, and by-law at the time allowed for schools on
the land purchased. Local residents lobbied municipality to pass new by-law to stop school. CJI
moved into the premises, but not a full occupation – limited number of children there to set up a
summer nursery with school to start in September, i.e. mixed-use at that time. 10 days later, by-
law was passed. 1 month later, the transaction for property closed.
Issue: Was the summer nursery adequate to establish use, and was the summer program itself
established? Is this sufficient to establish use as a school?
Decision: Use was established.
Reasons: SCC found that a partial use is sufficient to demonstrate an established use for the whole
premises, and demonstrates a bit of a shift away from Re Hartley – while intention is still
important, actual evidence of use is necessary. Thus, where a purchaser intends to use a
property for a particular use and takes steps to establish that use, even if the transaction is not yet
closed, they are still entitled to a legal NCU. No implication in statute that whole building has to
be used in order to benefit from protection in s.34(9).
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Has the Use Changed So Much as to be Lost?
City of Saint-Romuald v. Oliver (2001) (SCC) – Cowboys & Strippers
Facts: Usage of property was as a bar/restaurant. In 1981, a new ZBL came into effect under
which uses such as a restaurant/bar with entertainment or “erotic entertainment” was not
permitted, and also stated that a NCU cannot be replaced by another NCU. Thus, as of 1981,
property became a legal NCU. In 1994, property ownership changed and new owners began to
operate with „rippers. Municipality sought a court order for cessation of operations on the basis
that it not a conforming use.
Issue: Did the change in the type of entertainment mean that the owners lost their entitlement to
Decision: Protection lost; nude dancers are a significant difference.
Reasons: SCC found that protection for a legal NCU will be lost if:
o the scale or intensity of the activity amounts to a change in use;
o the new activities are seen as “too remote” from the earlier activities, or
o the new activities create undue problems for the municipality, neighbours or
Notes: This case provides a framework for determining issues like this, from Binnie J:
1. First, characterize the purpose of the pre-existing use.
2. „Mere Intensification‟ of the use will normally be protected, but it is the
degree of intensification that is important.
3. „Added Activities‟ may be too remote for protection.
4. If activities are altered, added, or modified within the “scope of the original
purpose”, then the landowner‟s interests will be balanced against community
interests (i.e. are there any new aggravating effects for neighbours?)
5. Effects on neighbours must be established by evidence
6. Landowner must be given some flexibility for a reasonable evolution of prior
7. Should not turn on personal judgments.
The case of Watts v. Benvenuti (2005) presents a categorical approach. In Oliver, the
SCC rejected the categorical approach as a way of dealing with NCUs.
o This case involved a corn farm where the owner wanted to have horses; under the
categorical approach, this was okay because the test is whether the two activities
fall into the same category of lawful uses, in this situation „farming activities‟,
which they do.
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Continuity and Change of Use and Impact on NCU Protection
How does the discontinuance of a use affect the scope of legal protection afforded to
legal NCUs? This series of cases explore capacity of owners of legal NCUs to make
modifications to the use – enlarge, expand, intensify, and still be protected by s.34(9)
Granville Savings & Mortgage Corp. v. Calgary (1995) (ACQB)
Facts: Restaurant/lounge located in Calgary in late 80s/early 90s. ZBL was then adopted that deleted
restaurant from the permissible uses in that zone, making restaurant a legal NCU. Bar owner ran
into financial difficulties and went into arrears; restaurant ceases operations and municipality
seizes its chattels for back taxes. Mortgagee takes over restaurant and wants to sell it to recoup
loan. Granville (mortgagee) goes to Court because Calgary refused to confirm that the property
would remain a legal NCU, which would make it difficult for Granville to sell – wanted a judicial
declaration that the property was a legal NCU.
Issue: Does the cessation of use as a restaurant result in loss of NCU protection?
Decision: NCU protection still existed as discontinuance of use only temporary.
Reasons: Granville argued that, as the legal owner of the property, they wanted to be able to
preserve the ability to use the property as a restaurant and sell it so that someone could
continue to use it as a restaurant. Court determined that NCU protection will extend to a
mortgagee that seizes property, and to the purchaser of that property. The test is that
protection will continue even if use ceases temporarily, where:
o The cessation of use is beyond the control of the owner/user;
o The owner attempts to continue use so far as practicable; and
o The owner demonstrates an intention to continue use
Haldimand-Norfolk v. Copland (1993) (Ont. Crt. Just.)
Facts: Recreational trailer owned by Copland and used in summer months for 12 years. By-law came
into effect in 1986, which made her trailer a legal NCU. Copland then replaced the trailer with a
much larger trailer. Applied for a building permit to build a deck around larger trailer – so it
became more permanent, rather than seasonal. Municipality refused building permit, because she
had gone beyond the envelope of protection provided by the legal NCU. According to
municipality, replacing trailer meant she had lost her entitlement to the legal NCU.
Issue: Does NCU expire when owner removes a structure and replaces it with a larger structure?
Decision: Protection lost.
Reasons: Court accepted Municipality‟s argument that the purpose of the legislation is to
eventually get rid of the NUC and replace it with permitted uses, and the legislation must
be interpreted according to its overall purpose. The way to accomplish this is to put
barriers and restrictions on things the owner may do, e.g. replace the trailer. Municipality
argued that, ultimately, the planning system expects Copland to comply with relevant by-
laws and bring her usage into compliance. Court rejected private property arguments of
Copland. Judge was alarmed at change in size of trailer – much larger; felt that this was
so big that the existing legal NCU was not permitted; too great a degree of intensification.
Way land is used must remain the same in order to retain protection, including scale and
size of use. Further, principle of fairness requires a consistency of treatment between
neighbouring properties. Thus, a NCU will be discontinued if a structure is replaced
with something of a very different size or scale.
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Expansion and Enlargement of Existing NCUs
s.34(10) Despite any other provision of this section, any by-law passed under this section
may be amended so as to permit the extension or enlargement of any land,
building or structure used for any purpose prohibited by the by-law if such land,
building or structure continues to be used in the same manner and for the same
purpose as it was used on the day such by-law was passed
s.45(2)(a) Committee of Adjustment may:
(i) permit enlargement or extension of a building/structure where an NCU is
established (but no extension beyond the boundaries of the property used for that
(ii) permit the use of land or building that is for a "similar" OR "more compatible"
purpose with the bylaw that prohibits the NCU (and the NCU has continued to the
date of the application).
To What Extent does the Law Permit the Expansion of Legal NCUs?
1. The owner has established NCU and the owner wants to extend the land or
enlarge the building that is devoted to this use;
2. The owner has an established NCU of a building and wishes to expand the use
within the „envelope‟ of the building (does not expand the space devoted to the
building, but intensifies the use).
s.34(10) allows a ZBL to be amended to permit the extension or enlargement of a use for
a prohibited purpose if the use continues in the same manner and for the same purposes
as on the date the original law was passed.
o Thus, there is a question about the relationship between ss.34(9) & 34(10)
Copland argued that s.34(9) gives enough power to enlarge/intensify use, without
needing to look at s.34(10). Converse argument is that because you have s.34(10), which
is a more specific section, it should prevail over the more general clause, and thus s.34(9)
must be read down subject to the narrower provision.
There are also other policy arguments that must be considered when looking at this issue
– public interests are clearly going to be compromised by allowing substantial
intensification/enlargement without going through a public review process with
submissions and accountability.
o Recall McCaulson‟s 3 Ideologies of Planning Law; one being public interest
and one being private property. This highlights the tension between these 2
o s.34(9) protects private property rights and prevents undue hardship to property
owners through retroactive legislation.
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Two Dominant Judicial Opinions on Intensification within s.34(9)
The dominant legal opinion is that we must protect private property rights and prevent
undue hardship to landowners.
o For example, Borins v. Toronto and 382671 Ontario Ltd. v. London – both these
cases hold that a legal NCU may be intensified without a by-law amendment or
o See also City of Saint-Romould v. Oliver, which in some ways sought to protect
private property rights of the neighbours to the land in question.
o In Borins, a residential unit was converted into doctors‟ offices. By-law then
passed saying that offices were NCU unless someone permanently lived in
building. Borins wanted to make entire structure into a medical practice. At issue
was whether the NCU on property is limited to the status quo as of the date the
by-law was enacted, or whether the use can be intensified within the envelope of
the building without offending the by-law. Borins was successful and
intensification allowed – applied test from Central Jewish Institute.
Judge stated there are two ways to interpret s.34(9) and the cases: either it
means that you preserve the right to use the property in the manner it was
being used when the restriction was imposed; or you preserve the right to
use the property in that manner but only to the extent that it was used in
that manner when the restriction was imposed.
Central Jewish Institute favours the former view over the latter – if the
legislation wanted to restrict private rights to such an extent, it would have
done so explicitly. Thus, it is necessary to interpret the legislation in a
way that protects private property rights, and should only restrict those
rights in the manner that is absolutely essential.
382671 Ontario Ltd. v. London (City) Chief Building Official (1996) (OCJ)
Owned a block of apartments; council passed bylaw making it a legal NCU. Then passed
another by-law deeming certain lawful NCUs to be permitted uses. A few years later, applied for
a building permit to convert a storage shed into another apartment; refused by City and told they
required minor variance. Appealed and were successful.
Ontario Ltd. argued that the City was taking away its section 34(9) rights. The bylaw was ultra
vires. There was no power in the planning act which allows a municipality to deem NCUs as
permitted and thus no longer an NCU – taking it out of the protective system, which is what the
Court determines that municipality cannot try to circumvent the province‟s position in the
planning regime, i.e. by deeming NCUs to be nominally permitted and thus taking them out of
the protection of s.34(9). Municipality attempted to make it so that no intensification could ever
be permitted without making it subject to s.34(10). This is repugnant and inconsistent with
s.34(9) – ultra vires, and no power in any act for a municipality to deem NCUs are permitted and
then require them to have to go and obtain other permissions. Intensification is permitted, but
must be done reasonably and with restraint, and consistent with established use.
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s.45(2) and the Committee of Adjustment
The Committee of Adjustment is set up to deal with minor variances.
One of the other things they can do is deal with applications from landowners with legal
NCUs, e.g. to permit the enlargement or extension of the building/structure, or can permit
the use of land/building for a purpose that is similar to the original purpose, or permit the
use of the land/building for a purpose that is more compatible with the ZBL that prohibits
Why choose this section over s.34(10)?
o This provision is less political and more low-key; amending the ZBL involves
greater procedural steps and is more likely to attract attention
o Case of Seo v. Toronto (Committee of Adjustment) deals with this issue.
Subject to this appeal to the OMB was a portion of a building in Toronto
and the applicant had applied to CoA for permission to change use from
salon to variety store. Premises had once been used as a drug store from
50s-70s, and this case is 1987. CoA allowed the application to use it as a
variety store. Owner of variety store across the street did not like the
competition, Appealed, and was successful. Seo argued that there was
inadequate evidence for the OMB to find that the proposed use of a variety
store is similar to the use of the premises in the 1950s when it was a drug
store. Seo also argued that use was also not more compatible. Applicant
argued that they were similar enough to come within the envelope of
protection. Evidence in this case was pretty weak in supporting
applicant‟s case – drugstore sold newspapers and cigarettes, but no
evidence presented re: scale of those businesses. The OMB decided that
there was insufficient evidence to find sufficient similarity, nor did it
advocate a general approach to “commercial/retail.”
When applying test –
Similar use test -
o if the purpose of the statute is that NCU should
disappear/comply with land use controls, then test is
somewhat stricter than generality „commercial/retail‟
Compatibility with current bylaw test –
o no evidence to show that the land use impacts/effects of
the drug store use and variety store use (traffic, litter, etc.)
made it more compatible – when you ask if it‟s more
compatible, look to the effects of the use
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Limitations on the Zoning Power – The Principle
The doctrine of non-discrimination states that, unless a statute states or implies otherwise,
municipal rule-making powers must be exercised generally, i.e. they must set out rules
that apply to everyone.
o Public agencies cannot treat those being regulated different unless expressly
allowed to do.
o This serves to both protect private property rights from municipal regulation, and
to curb “people-zoning”, i.e. discrimination through the zoning power
The rationale behind this principle is two-fold: it is intended as a check on municipal
power in order to prevent abuse, and it is intended to protect common law rights.
Courts have generally found that the legal powers conferred upon municipalities do not
include the power to provide different rules or regulations for different categories of
o This can be criticized, however: in providing such protection, the Courts have
sometimes adopted an arbitrary approach to interpreting municipal powers.
Further, the courts have failed to adequately define “discrimination”.
Montreal v. Arcade Amusements Inc. (1985)
“The rule that the power to make by-laws does not include that of enacting
discriminatory provisions unless the enabling legislation provides the contrary has
been observed from time immemorial in British and Canadian public law.”
City of Ottawa v. Royal Trust Co. (1964)
In this case, the Court tolerated discrimination as it was used in the fulfillment of planning
purposes. The city enacted a by-law imposing a charge on high rise buildings for supplying
additional storm sewer services. Court held that there is a rational basis for the enactment of the
by-law in its form as it stands. Adding to an existing building in such a way as to bring it within
the terms of the legislation and by-law for the purpose of the exemption and a levy on the new
construction on that basis is not discrimination.
Finally, discrimination is found in the fact that the City classified buildings as residential and
non-residential or combined residential and non-residential. […] The distinction was a natural
and sensible one and while within the broad terms of the enabling statute and that there was
nothing arbitrary, unjust or partial in drawing such a distinction.
Thus, some distinctions may be tolerated where a court decides there may not be a specific
power, but we can imply a power in the broad sense from the purposes of the statute i.e.,
fulfilling a planning purpose
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Doctrine of Non-Discrimination as Applied to Zoning By-Laws
This also demonstrates that the standard has been applied differently by different courts.
o While the Courts all want to see some sort of statutory basis for the
discrimination, the Courts will be more likely to imply a basis.
Zoning in itself is inherently discriminatory – courts will therefore tolerate such
distinctions, because these are implied as a purpose of the Act.
o However, the courts will use the doctrine as a tool to limit the power of zoning
by-laws in order to ensure substantial fairness to different groups.
o In general, the concern is to protect minorities and bolster the framework of social
Robert Liberty – “Abolishing Exclusionary Control: A Natural Policy Alliance for
Environmentalists and Affordable Housing Advocates”
Looks at cities like Portland as having fantastic LUP models, which include local
government Greenbelt reform, public transportation and requiring developers to set aside
hours as affordable prices for the less affluent.
He argues that American city planners have practiced exclusionary zoning in the past,
e.g. zoning suburb lands for single-family homes.
This demonstrates a substantial layer of discrimination „in essence‟, which may not be
captured by a court‟s application of the doctrine of non-discrimination.
Another example is requirements on minimum lot size – while superficially this does not
appear discriminatory, it will exclude certain kinds of housing and raise the price of the
lot, ensuring that certain kinds of people cannot afford to live on such large properties.
However, just as planning can be a hidden form of discrimination, it can also be used to
remedy such discrimination.
Scarborough Township v. Bondi (1959) (SCC) – “Ensuring Conformity through Discrimination”
All properties had to have minimum frontage of 100 ft. Bondi‟s property, corner lot, had 220 ft.
Bondi wanted to build 2 houses on the property and although the house would meet the frontage
requirements, the houses would be much smaller than those around them. The city passed a by-
law, singling out the lot, directly prohibiting that building 2 houses on it.
The SCC held in favour of the city, noting that it has power to regulate such things as frontage,
etc. This particular by-law does not actually discriminate against B; rather it will bring his use
into conformity: the general ambience is that this by-law is necessary to ensure that his property,
when developed, would be in conformity.
Definition of Discrimination (from Forst v. Toronto) “when the municipality is given the right to
regulate, I think that all it can do is to pass general regulations affecting all who come within the
ambit of the municipal legislation. It cannot itself discriminate, and give permission to one and
refuse it to another …”
Thus, although there is obvious discrimination, the court does not find discrimination in
substance. There is no evidence of bad faith (e.g. trying to achieve an underhanded objective).
Emphasis on not trying to give an advantage, but rather trying to create a level playing field; no
private interest, only a public interest at stake.
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City of Toronto v. Mandelbaum (1932) (Ont. HCJ) – Discrimination to Prevent Unfair Advantage
A case involving a lumber yard in the city centre. Council had passed a by-law with a permit
structure in place. Courts found that the by-law was ultra vires - while the Municipal Act
provided powers for prohibiting activities, there was no enabling power to enforce a
The court was also concerned that the permitting scheme would enable discrimination, i.e. some
business would benefit, others would not, and municipality could play favourites or create
Note that during the time of this case (the 1930s), the doctrine of discrimination was applied
different. While today it is understood in the context of human rights and protection of
minorities, in the past it was a tool with an economic/business-oriented rationale, i.e. trying to
ensure that businesses could operate on a level playing field while ensuring that the municipality
could not procure unfair advantages. It was not until the 1950/1960s that courts started
challenging racial discrimination under this rule, e.g. ethno-centric subdivisions.
Note with regard to remedies, that a municipality cannot get an injunction to stop people from
doing certain activities, unless those activities are listed in s.513 of the Municipal Act.
Re Township of North York Restricted By-law 1467 (1960)
“Small areas may be zoned as well as large ones and facts as to their ownership or control
should have no bearing when consideration is being given to the question of whether or not
the area sought to be zoned complied with a general purpose and intent of the legislation.”
In this case, the courts again dealt with the issue of a municipality zoning a cluster of individual
lots. It demonstrates the courts are content to tolerate lot-by-lot zoning, so long as it is done
with some sort of legitimate planning purpose. However, a demonstrated planning rationale is
crucial (e.g. “amenity values” or “neighbourhood ambience” or “upholding character of
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Re H.G. Winton Ltd. and Borough of North York (1978) (Ont. HCJ) – Targeted Zoning
Winton Ltd. owner of a parcel of land with a large 2-story house and wanted to sell it to the
Zorastraian Society of Ontario. Land was zoned residential, recreational and institutional. At
time of sale, building commission had advised that the proposed new use of building as a temple
would be okay. Neighbours started a petition to oppose that use because they didn‟t want a
temple and wanted house to remain residential or be knocked down for multiple single-family
homes Shortly after APS signed, municipality re-zoned property and a number of neighbouring
properties to prohibit church uses; rushed by-law through without normal kinds of studies/reports
and waived 2 weeks notice for new agenda item, no public hearing, etc.
Winton argued that the bylaw was discriminatory. Council argued that the by-law was non-
discriminatory because it is not only directed at the proposed development site, but also 235
other properties in the area, that it is not only directed at the temple, but addresses other kinds of
uses (schools, libraries, etc.)
Court quashed the by-law, essentially because it was enacted in bad faith by the municipality:
meaning that the council acted unreasonably and arbitrarily without a degree of fairness,
openness and impartiality required by a public institution. Moreover, the by-law was in fact
discriminatory. This situation was an attempt by council to camouflage a decision targeting
Winton‟s property in a wider by-law. The court looked „behind‟ the by-law itself to its reasoning
and found that it was discriminatory. The by-law was also discriminatory because there was no
proper planning purpose to back it up: there must be proper planning grounds/standards to
warrant discriminatory distinctions between property owners in the same position, classification
or zoning category. Here, no planning purpose has been shown to explain let alone justify, this
election of a single spot in the borough as a subject of this amendatory zoning by-law.
This case has four important elements:
1. Protection of religious minorities was an issue considered in this case, demonstrating that
planning has an important social impact [not simply mechanical allocation of land use]
2. Addresses the discriminatory nature of a by-law, even though it may not be apparent
from the wording of the by-law: courts must read between the lines
3. Courts will examine the evidence of the actual purpose of a by-law to determine
whether this is consistent with the purpose and intent of the zoning power: in doing
so, courts are beginning to look at substantive merits of planning issues and behaving
more like the OMB, asking is what the by-law trying to achieve consistent with zoning
4. “Community as a cloak for discrimination”; vehicle for conformity and suppression of
difference. See writing of Iris Young. Purpose of the bylaw was not good planning, but
to keep out a religious sect that the people in the community did not want.
“The words of a by-law cannot serve to blind the court to its real purpose or preclude examination
of the facts and circumstances connected with it. I think it evident that council was not concerned
here with rezoning any property other than the applicant‟s”
“There must be proper planning grounds or standards to warrant discriminatory distinctions
between property owners in the same position, classification or zoning category. Here, no planning
purpose has been shown to explain let alone justify, this election of a single spot in the borough as a
subject of this amendatory zoning by-law. There is no rhyme nor reason, in a planning sense, for
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Limitations of the Zoning Power – Property and
This deals with the interaction of planning law and people in the post-Charter era.
Can the administrative law doctrine of non-discrimination be used to challenge zoning
schemes that exclude people on the basis of their relationships, characteristics or other
aspects of their identity (i.e. people zoning)?
R. v. Bell (1979) (SCC)
Facts: By-law was adopted by North York and restricted dwelling units to single-family use, and
defined what a family meant – 2 or more persons bound by bonds of consanguinity,
marriage, legal adoption, non-paid guests and servants, etc. By-law appeared to be
regulating the users, and not the use. Bell was convicted of contravening the by-law
because he was residing in the premises with people he was not related to.
Issue: Was the by-law a valid exercise of the power granted to the municipality under the
Reasons: SCC found that the by-law was not regulating the use, but who could use it. Planning
law and zoning should concern itself with use and not with users. Looked at definitions
from by-law and quoted with approval the decision of the lower court – “I do not think
personal qualifications of this type or other personal characteristics or qualities have ever
been suggested here as a proper basis for control of density or any issue relevant to land
or land-use zoning … This is land zoning by people zoning and is not within the scope of
the Planning Act …”.
Note: Court applied the standard of reasonableness in reviewing by-law, i.e. decision of
municipality was one that Parliament could never have entertained it would be reasonable
for municipalities to come to – zoning private relationships and living arrangements.
Dissent: “What is or is not in the public interest is a matter to be determined by the judgement of
the municipal council; and what it determines, if in reaching its conclusion it acted
honestly and within the limit of its power, is not open to review by the Court…” – thinks
the principle of municipal autonomy should govern (like Shell v. Vancouver)
After Bell, there were 2 cases that undermined its decision
Smith v. Township of Tiny (1980) (OCA)
This case, and others, led to amendments of the Planning Act in the late 1980s – see next page.
Faminow v. North Vancouver (District) (1988) (BCCA)
This case ignored the ruling in Bell. Involved by-law prohibiting basement apartments in single-
family homes. Argument that this was regulating users and not use failed. Court could have
followed Bell, but chose not to.
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35(2) No distinction on the basis of relationship –
The authority to pass a by-law … does not include the authority to pass a by-law
that has the effect of distinguishing between persons who are related and persons
who are unrelated in respect of occupancy or use of a building … including …a
single housekeeping unit
However, other provinces continued to adopt similar kinds of by-laws that could be seen
as discriminatory, e.g. the following –
Tenants’ Rights Action Coalition v. Delta (Corporation) (1997) (BCJ)
Note that although this case came after the Charter, it did not deal with Charter arguments
because it was not necessary to find unlawful discrimination; dealt with discrimination under the
M. owned a house zoned for single-family dwellings. Unrelated woman lived in basement
apartment. If that woman had been related to the McDonalds, they would have been able to get
an okay from the council most likely. However, because she was not related under definition of
family. Neighbour complained about tenant, despite there being no neighbourhood impacts.
Sought to have law struck down, and were successful – municipality was acting ultra vires; well-
recognized principle of municipal law that a municipality cannot discriminate between
individuals unless authorized to do so expressly or by implication. A by-law that attempts to
draw distinctions between people would be ultra vires unless there was a statutory enabling
power, even if the municipality was acting in good faith or for a good planning purpose –
without the enabling power, by-law cannot be saved. Delta‟s argument that by-law was intended
to control density (which was allowed under their enabling legislation) was rejected by Court.
Argument of Faminew as precedent was also rejected.
“Here, the impugned bylaw case clearly had the effect of drawing a distinction between
persons occupying „dwelling-units‟ based upon their relationship with the principal
occupant of the dwelling. The bylaw is discriminatory in the municipal law sense and is
ultra vires unless that distinction is authorised either expressly or by necessary implication
by the Municipal Act “
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Canadian Charter of Rights and Freedoms, 1982 – Section 15
15(1) Every individual is equal before and under the law and has the right to
equal protection of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age,
or mental or physical disability.
Alcoholism Foundation of Manitoba v. Winnipeg (City) (1990) (MCA)
Several group homes of the Alcoholism Foundation challenging a Winnipeg zoning bylaw that
was differentiating the provision of group homes in a way that would create a legal burden that
wasn‟t applied to other kinds of houses. More onerous under bylaw to provide group home
compared to other kinds of housing.
MCA quashed the by-law as having no force/effect. Found it was discriminatory under the
Charter, as it discriminated against a discrete minority group in the use of land because only they
had to apply to live together as a group of family, whereas other kinds of people could group
together and live without approval.
"A complainant under Section 15 (1) must show not only that he or she is not receiving
equal treatment before and under the law or that the law has a differential impact on him
or her in the protection or benefit accorded by law but, in addition, must show that the
legislative impact of the law is discriminatory. Discrimination may be described as a
distinction…based on grounds relating to personal characteristics of the individual or
group, which has the effect of imposing burdens, obligations, or disadvantages on such
individual or group not imposed upon others, or which withholds or limits access to
opportunities, benefits, and advantages available to other[s] …."
This case is significant because it brought together the 2 parallel streams of legal thinking:
Bell: zoning could not be based on personal characteristics of the occupants unless
express legislation provided for it; and
Charleton v. Charleton Association of Residential Services (1979): residents of a group
home would ordinarily be found to form a family.
This case “reconciles these 2 cases and overlaid onto them the Charter”.
Other Cases Involving the Charter
Children’s Aid Society of the Region of Peel v. Brampton, 2002 (Ontario Crt of
Peel (Regional Municipality) v. Great Atlantic & Pacific Company of Canada, 1991,
(Ontario Crt of Appeal)
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City of Toronto Shelter By-law 1380-2003
Toronto has a shortage of emergency homeless shelters and determined that a new by-law
was necessary to reduce overcrowding in existing shelters when the number of homeless
people increased substantially.
The Golden Report established that it was important for the homeless to be sheltered
close to their own neighbourhoods.
The by-law provided that shelters could be established as of right if they met certain
In 2003 (2 years later), politicians added restrictions: every shelter regardless of size and
type must be on an arterial road, must be 200 m away from other shelters and must be
approved by a full council vote.
Application brought to the OMB arguing that the restrictions were onerous, arbitrary and
placed barriers to setting up urgently needed homeless shelters.
The OMB discarded several features of the by-law, in particular it removed the
requirement that council must vote on each shelter. It also substantially modified the
arterial road restriction (making it easier to qualify).
o It did, however, maintain the 200m separation requirement between shelters.
o The OMB was therefore sympathetic to arguments put forth by advocacy groups
in paring down the by-law as not being justified by good planning principles.
o THEREFORE THE OMB IS NOT EVIL. CITE THIS CASE IF THERE IS
A QUESTION ON THAT.
On the Charter issues, the OMB noted that it does not have jurisdiction. In this case, they
declined to regard the homeless as a disadvantaged group under the Charter, but stated
that the Charter was not an area they wanted to get involved in.
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Discretionary Zoning Powers
This relates to micro land-use regulation.
Consider discretionary zoning and development control compared to normal zoning.
Discretionary zoning powers provide the power to distinguish between properties located
in the same zones.
Zoning bylaws are designed to apply over an entire area, affecting many different
property owners. These kinds of controls, conversely, tend to be more localized and
focus, often directed at a single property.
With some of these mechanisms, there are possibilities of imposing positive conditions
for approval, e.g. the ability to ask a developer to make a financial contribution to setting
up a childcare centre as a condition of receiving approval for their project.
This kind of regulation is often negotiated, rather than imposed – the developer and
council/bureaucrats often negotiate the rules that will regulate planning on a particular
o For example, site plan agreements are often negotiated.
This kind of regulation very much differentiates and distinguishes properties – know the
municipalities cannot discriminate unless given the powers to do so, which they have
under certain provisions, and thus under those provisions they can tailor planning to
specific pieces of land.
Holding By-Laws – s.36
36(1) The council of a local municipality may, in a by-law passed under section 34,
by the use of the holding symbol "H" in conjunction with any use designation,
specify the use to which lands; buildings or structures may be put at such time in the
future as the holding symbol is removed by amendment to the by-law.
(2) A by-law shall not contain the provisions mentioned in subsection (1) unless
there is an official plan in effect in the local municipality that contains provisions
relating to the use of the holding symbol mentioned in subsection (1).
The purpose of a holding by-law is to ensure that one or more specific matters can be
addressed prior to the by-law coming into effect
This means that there may be a kind of use that has been approved, but the municipality
may put a symbol (H) in the by-law, meaning that the kinds of use to which the H applies
cannot go ahead until certain conditions have been satisfied.
Also important as a due process requirement to look at subsection 2, above – must be an
official plan in place which entertains the kinds of scenarios in which holding by-laws
would be used
The value of these provisions is that it allows municipalities to manage the pace and
timing of growth, economic development and land use within the municipality
Holding by-laws serve to temporarily freeze development pending the conditions being
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Temporary Use By-Laws – s.39
s.39(1) The council of a local municipality may, in a by-law passed under section 34
authorize the temporary use of land, buildings or structures for any purpose set out
therein that is otherwise prohibited by the by-law.
This provision allows a municipality to authorize uses that diverge from those that are
allowed, but with a time limit on the period of divergence
In effect, this creates a “trial period” for prohibited uses.
This trial period is limited by the Act to 3 years, but allows for extensions of further 3-
Note that a minor variance could also be used to achieve the same goal, but part of the
test for granting a minor variance is that the variance must be minor (i.e. could not get a
minor variance for a major change in usage)
An example of a temporary use by-law is to give permission for a business to operate in a
residential zone, in order for the municipality to see how it works and if there are any
Consider the issue of how permanent temporary by-law provisions should be allowed to
Kuisma v. Sault Ste. Marie (1991)
Temporary use by-law should not extend beyond the life of the Official Plan, and at that
point the municipality should either put a stop to the use, or make an amendment to the
underlying ZBL to make the use permanent.
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Bonusing – s.37
37.(1) The council of a local municipality may, in a by-law passed under section 34,
authorize increases in the height and density of development otherwise permitted by the by-
law that will be permitted in return for the provision of such facilities, services or matters as
are set out in the by-law.
(2) A by-law shall not contain the provisions mentioned in subsection (1) unless there is
an official plan in effect in the local municipality that contains provisions relating to the
authorization of increases in height and density of development.
(3) Where an owner of land elects to provide facilities, services or matters in return for an
increase in the height or density of development, the municipality may require the owner
to enter into one or more agreements with the municipality dealing with the facilities,
services or matters.
(4) Any agreement entered into under subsection (3) may be registered against the land to
which it applies and the municipality is entitled to enforce the provisions thereof against
the owner and, subject to the provisions of the Registry Act and the Land Titles Act, any
and all subsequent owners of the land.
Bonusing allows for the intensification of development at a specific site in return for the
developer providing the municipality with certain benefits
It involves deal-making between the municipality and the developer
Note that s.37 is discretionary – “may” pass a by-law increasing density of development that is
otherwise not permitted…
This section provides a mechanism for the deal-making; but in order to have a deal, there must be
an official plan in place that provides a policy framework for those deals
Under subsection 3, the deal can take the form of an agreement, and under subsection 4, the
agreement may be registered against the title of the land, i.e. create a contractual mechanism that
will bind the parties, as the municipality wants to ensure that if there is a new owner of the
property, they too will be obligated to keep up the deal – the burden runs with the title of the land,
not the individual owner of the land at the time of the deal.
There are 2 rationales for the use of bonusing:
1. A public decision to confer increased development rights will increase the land value of
that property, and therefore it is desirable that there should be some sharing of the
increased land values between the public and the private sectors; thus if a council agrees
to allow a landowner to have a more valuable property, they should be obligated to share
that increase in value with the community (distributive effects)
2. When a new development occurs, there can be negative impacts of that development on
the community, e.g. increased traffic/congestion, loss of views, increased pollution and
increased demands for servicing (detrimental effects)
Bonusing has had a controversial history – concern that it could lead to deals being done that
undermine the quality of land use planning in a certain area.
o In Ontario, to minimize that threat, there is the requirement that there be an OP in place
that contains general provisions to support the kinds of deals associated with bonusing.
o Specific policy concerns include the view that if zoning reflects the best use of the land,
why should it be traded for money? Does the compensation adequately cover the
increased social costs for development that exceed the best use of the land? How does
one evaluate and measure in monetary terms the bonusing deals? Cash-strapped
municipalities might be pressured into making deals to entice developers, might cause
competition between municipalities, to the detriment of public interest.
Conflicts can arise, which leads to the case law – following page.
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Toronto (City) v. Minto (2000) (Ont. SCJ)
Facts: Minto wanted an 18-story luxury apartment building and Toronto‟s policy was that
bonusing contributions needed to equal 30% of the increase in land value. Minto argued
that was too high and arbitrarily imposed. City Council did not determine any specific
public benefit for which to use the contributions.
Decision: Not an appropriate use of bonusing.
Reasons: OMB said that the planning act requires municipalities to exercise these obligations in
a clear, consistent and non-arbitrary way and there is a benefit on the municipality to
prove that there is a public benefit that would result from the bonusing. Found there was
no proper basis for the 30% formula imposed by Toronto. Superior Court of Justice
found that, when exercising density bonusing powers, municipalities must have clearly
consistent and non-arbitrary policies; thus, although mechanisms can be tailored to
different developments, it must be fair in how it treats those different developments.
Contributions must be defensible and based on clear planning policy.
Notes: The case law has progressed since this decision, so refer to the next case.
Onus on municipality to demonstrate benefits of s.37 contribution for a particular site.
1430 Yonge-St. Clair Inc. v. City of Toronto
This case held that there does not have to be a relationship between an s.37 benefit and the
actual development itself. Instead, s.37 benefits being an integral part of good planning, the
OMB said that this section was not necessarily to achieve good planning, but rather to provide a
tangible benefit to the public that will have to deal with the negative effects of the development –
crowding, traffic, pollution, etc.
Therefore, municipalities do not have to meet good land-use planning standards, but rather must
find a way to offset bad planning through compensation to the public. If a particular
development/intensification of development can be justified on planning grounds, it may be
difficult for the municipality to demand additional contributions.
Richardson does not think this is correct, because the OP/ZBLs will determine what is allowed.
Summary of Key Conditions for Bonusing:
When exercising bonusing powers, municipalities must act clearly, consistently and non-
arbitrarily (Toronto (City) v .Minto)
Bonusing may be affected by site-specific OP amendments and by-laws (but there must
be an established planning policy in place which suggests need for s.37 contributions in
the given case). (Toronto (City) v .Minto)
The public benefits of a bonusing agreement need not be site specific, but should benefit
the development precinct itself. (1430 Yonge-St. Clair Inc. v. City of Toronto)
If the developer can make the case for zoning exemptions on planning grounds, the
municipality has no right to ask for bonuses. (1430 Yonge-St. Clair Inc. v. City of
Toronto‟s OP Provisions on Density Bonusing – 5.1 to 5.2 of Official Plan
requires developers to provide community benefits in the form of capital facilities, which must
bear a reasonable relationship to the increase in height/density of a proposed development
development must constitute good planning, and priority will be given to the provision of on-site
or local community benefits
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Interim Control By-Laws – s.38
38(1) Where the … local municipality has … directed that a review or study be
undertaken in respect of land use planning policies in the municipality or in any
defined area(s) …, the council of the municipality may pass a by-law (… an interim
control by-law) to be in effect for a period of time specified in the by-law, which
period shall not exceed one year from the date of the passing thereof, prohibiting
the use of land, buildings or structures within the municipality or within the defined
area(s) …, or except for, such purposes as are set out in the by-law.
Interim control by-laws are designed to apply to a specific area for a period of 1-2 years
Purpose is to allow a municipality to conduct planning studies for that area while the IC
by-law is in effect
Note that there is no requirement that there be prior notice to affected property owners
Once the municipality has passed the IC by-law, they must give notice within 30 days
under subsection 3
Note that these by-laws will not interfere with a legal NCU, but can prohibit or restrict
new uses of land
Once the IC by-law concludes or the study is completed, the municipality must either
return to the original zoning by-law scheme, or issue a new ZBL
Methodology for ICBs - Luxor Entertainment Corp. v. North York (1996) (Ont. Gen Div.)
When considering bad faith or illegality of an ICB, the Courts will be mindful of the following
IC power is “extraordinary”
o should be used sparingly because it affects private property rights
Only for situations of “great urgency”, because it‟s an exceptional power
Apply statutory criteria strictly.
o by-law power must be exercised in a systematic and responsible way –again,
because it affects private property rights
Once potential adverse impact is demonstrated, onus shifts to the city to justify ICB.
The site-specific nature of the by-law is a relevant factor.
o factor to take into account in considering whether by-law is unfair, the more
cautious we need to be in evaluating it
ICBs are liable to be subject to abuse, and thus transparency of the process is very important. If
the council is going to direct a study, that study must go to the real planning concern. In this
case, the studies the council initiated were not directed towards the problems identified.
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Competing Perspectives on Interim Control By-Laws
The case of Equity Waste v. Halton Hills (Town) (1997) took a more deferential
approach to reviewing the behaviour of the municipality, holding that if the municipality
complies with statutory requirements in initiating a study, then the court should defer to it
and not question its motives – harkens back to principle of municipal autonomy.
o Recall that this was the proposed recycling facility, and Equity did not want to go
to the OMB because of the delay, and instead went straight to court.
o Note that in Equity, Laskin J. says that the legal burden to prove bad faith remains
on the party challenging the by-law; just because there is an adverse impact does
not mean that the onus shifts. It always remains with the party challenging the
by-law (affirmed in Re 1121472 Ont. Inc. and the City of Toronto).
Note: While timing of the ICB may be relevant to a question of good faith, such facts
must be considered in the context as a whole (Re 1121472 Ont. Inc. and the City of
Thus, there are 2 competing perspectives on IC By-Laws:
Equity Waste (1997) Luxor Entertainment Corp. (1996)
"An IC by-law is the most powerful device
"IC by-laws are an important planning available to a municipality to effectively and
instrument for a municipality. They allow the without notice deprive landowners of their
municipality the breathing space to rethink its private property rights" With such power
land use policies by suspending development comes great responsibility on the part of a
that may conflict with the policies" municipality to scrupulously safeguard against
Richardson‟s Ideal Route for ICBs –
if there is pressure for new use, establish appropriate planning study
pass IC by-law
once completed, determine whether to regulate use
finally, council might want to „phase it in‟ by passing a holding by-law
See case on following page
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London (City) v. RSJ Holdings Inc. (2007) (SCC) – Municipal Autonomy, Role of Courts
This case is significant because it helps to clarify the municipality's responsibilities to conduct
their proceedings openly. Note that this was a unanimous decision of the Supreme Court.
The facts involved the passing of an ICB in a closed door meeting. The developer sought to
quash the by-law as being contrary to MA s. 239(1), which required that except as provided for,
all meetings shall be open to the public. Sub (g) provided the exception that council may hold a
closed meeting subject to another Act. The City argued that the other Act in this case was the PA,
which states in s.38(3): that no notice/hearing is required when passing an ICB.
SCC was concerned that the powerful nature of ICBs should demand more, not less,
transparency and accountability.
SCC made important statements on 2 different topics:
On the issue of the Relationship between the Planning Act and the Municipal Act:
“City‟s duty to give advance notice and to hold a public meeting at which interested citizens
have the right to make representations is entirely distinct from its obligation to hold its meeting
In effect, the PA addresses the right to notice, whereas the MA address the right to
observe meetings that are transparent, etc.
Simply because there is no requirement for notice, this does not mean that you can
dispense with the requirement for a public meeting
On the issue of Deference to Municipal Authority:
“Municipal law has changed to require that municipal governments hold meetings that are open
to the public, in order to imbue municipal governments with a robust democratic legitimacy. The
democratic legitimacy of municipal decisions does not spring solely from periodic elections,
but also from a decision-making process that is transparent, accessible to the public, and
mandated by law. When a municipal government improperly acts with secrecy, this
undermines the democratic legitimacy of its decision, and such decisions, even when intra
vires, are less worthy of deference.”
Important addition to the doctrine of deference, as courts will require greater standards of
This broad interpretation brings with it a corresponding obligation on municipalities to
ensure that their procedures are clear, transparent and as open as possible
o The courts are saying that they will be deferential with regards to the jurisdiction
and planning of the municipality, but less deferential with regards to procedural
Thus, an important outcome of this case is the notion of procedural vs.
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Site Plan Control
s.41(2) Establishment of a site plan control area. –
Where in an official plan an area is shown or described as a proposed site plan control
area, the council of the local municipality in which the proposed area is situate may,
by-law designate the whole or any part of the area as a site plan control area”
s.41(4) Approval of plans or drawings. –
No person shall undertake any development in the [designated area] unless the
council … has approved one or both, as the council may determine, of the following:
1. Plans showing the location of all buildings
2. Drawings showing … exterior design, walkways, etc.
s.41(4.1) - site plan control does not extend to interior design
Site plan control is a form of micro-development control.
o It involves the municipality reviewing plans that show the location, design and
massing of buildings, the relationship to adjacent streets and buildings, public
access areas, the layout of parking and service areas, site landscaping and other
aspects of the development
It is a power under which the municipality may subject developments to an approval
scheme and impose positive conditions
o SPC illustrates a model of regulation resulting from negotiation, rather than the
Note that these provisions were modified substantially by Bill 51 in 2006 – introduced
some important changes to site plan control
The municipality must have an official plan in place which sets aside or identifies an
area in which site plan controls can apply, and it must also have a by-law which
actually designates that area for site plan controls.
For areas and developments where SPC applies, the council may approve the plans and
drawings and the owner-developer may be required to enter into an agreement to secure
the construction of the project according to the plans
The rationale for site plan control is the feeling that the public should have the
opportunity to provide input into publicly-accessible parts of buildings and structures
o Provides a way to deal with the externalities of development that can be described
as “visual pollution” – cannot give property owners complete control over their
own structures, because everyone else has to look at it.
o Public interest in how the aesthetic features of a building apply to an entire
o Provides an opportunity to manage the impact of development on hard surfaces,
e.g. infrastructure costs imposed around the vicinity of that area
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Courts have said that municipalities must adhere closely to the statutory criteria, and
cannot negotiate too much.
Courts generally view SPC powers as not being a mechanism by which cities can engage
in wide-ranging discretionary controls over how people can construct their buildings –
there are limits as to what one can negotiate
City of Toronto’s View of Site Plan Control
Site Plan Approval
Site Plan Approval is a planning review process which examines design and technical
aspects of a proposed development to ensure high quality building design, contributes to
an attractive streetscape and skyline, complements the local neighbourhood or local
business area and meets the City‟s requirements for servicing the site.
Appeal Rights for Site Plan Control
Note that there are no appeal rights for third-parties.
Someone who needs site plan control could appeal to the OMB if they are dissatisfied
with the conditions or are denied SPC, but there is not something the general public is
o Although they cannot appeal to OMB, may be able to appeal through the Courts
Metropolitan Separate School Board v. Scarborough (1996) (Ont. Ct. Gen. Div.)
“There is a long line of authority from the Ontario Municipal Board and from the courts
rejecting attempts by municipal councils to expand the range of items which they can approve
or require through the use of site plan control and site plan agreements under this section.”
This case involved a dispute about portables – at the end of the agreement period, the portables
had to be removed, and the dispute arose because the school board did not want to remove them.
The issue was whether a SPC agreement can provide that the developer has to remove portables.
Does the site plan agreement comply with the Planning Act? What are the means of
This case provides a helpful interpretation of s.41 powers:
1. SPC agreements are not by-laws and hence not enforceable using the tools of by-law
tools available: contract; property law (registration on title)
2. Municipalities may not impose time restrictions on buildings under SPC agreements
3. The permissible terms of site plan control agreements are limited to the specific
provisions stated in s.41
narrow construction and not a basket of powers to micro-regulate
Note that as a result of this decision (?), s.41(1.1) was added to the Act – “The definition
of "development" in subsection (1) does not include the placement of a portable
classroom on a school site of a district school board if the school site was in existence
on January 1, 2007”.
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Polla v. Uzumeri (2000) (Ont. SCJ)
Facts: : SPA not normally used for residential properties; though sometimes used where a
property backs onto a piece of land that is environmentally protected (i.e. ravine) –
wanted to build a new house and tear down existing one; built a retaining wall, had the
effect of extended amount of usable space on their land; went to get a building permit and
chief builder refused pending „site plan approval‟ – one condition that the city requires:
retaining wall be removed and land adjacent to land be restored to natural site and
proposed site moved back 10m. These conditions need to be met before site plan
approval will be met.
Issue: Under the ON Building Code, the proposed house would qualify for meeting its standards.
However the Code does say that a permit will be issued unless in contravention to other
applicable law. Does „other applicable law‟ include SPA?
Decision: Building permit should be issued; city‟s actions were „unlawful‟.
Reasons: Court relied on the case of Quay West Corporation of Toronto (1989) which held that
a permit should not be issued for a development in a SPC area until the SPA for the
development has been obtained. A building permit could only be issued if there were
extraordinary circumstances. Court held that the city was putting “onerous conditions”
on the applicant and therefore it was unlawful; and thus a building permit should be
issued. City was trying to achieve environmental law outcomes through the SPC
agreement. The plan contained protection of ravines, etc. but had no particular legal
ammunition. s. 41 of the PA do not provide adequate authority to justify conditions
imposed on SPC in this case: narrow reading again by the courts on SPC.
“Any authority of the City to impose conditions on site plan approval can only flow from
the express provisions of s. 41 of the Act. That provision has been held by this Court and by
the OMB to be restrictive, rather than discretionary, and to be concerned with conditions
relating to the internal arrangements of buildings and facilities and provision of services and
access to the specific development under consideration”
The Three Important Points to Take Away from this Case are:
1. Site plan agreement is “other applicable law” under the Building Code Act (Quay West)
2. The denial of a site plan agreement may constitute “bad faith” or reveal that the
municipality had a “clearly unlawful purpose”
3. Municipality may not impose any conditions not expressly authorized by s.41
a. Note that they may not do so even if they are set out in the Official Plan
b. See page 775 for a list of allowed conditions (s.41(7))
Note that appropriate forum was also raised in this case – there was the possibility of either
the court or the OMB hearing the case. Pollas could have gone to the court under s.25 of
the Building Code Act, which would give court jurisdiction to hear matter. It is important
to consider this case when dealing with jurisdiction, as it shows a different approach taken
by the Courts.
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Development Permit Systems
A development permit system incorporate site plan control, minor variance procedures
and s.34 zoning by-laws into one process.
It is authorized by Ontario Regulation 608/06 –
1. 2. The council of a local municipality may by by-law establish a development
permit system within the municipality for any area or areas set out in the by-law.
2. 3. The council shall not pass a development permit by-law for any area in the
municipality unless, before the passing of the by-law, the official plan in effect in
(a) identifies the area as a proposed development permit area; ….
3. 4(1) Section 34 of the Act … apply, with necessary modifications, to the making
of a development permit by-law, and the by-law is deemed to be a by-law passed
under section 34 of the Act, except as set out in this Regulation.
4. 4(2) A development permit by-law shall,
(a) contain a description of the area to which the by-law applies …‟
(b) set out and define the permitted uses of land;
(c) set out a list of minimum and maximum standards for development;
(f) provide that a development permit may be amended as described in the
5. 10(1) An owner of land … may apply to the council of the municipality for a
development permit with respect to land subject to a development permit by-law.
6. 10(13) Section 41 of the Act [site plan control] … applies, with necessary
modifications, to an application for a development permit, except as otherwise
provided in this Regulation.
70(1) The Lieutenant Governor in Council may, by regulation,
7. (a) establish a development permit system that local municipalities may by by-law
adopt to control land use development in the municipality;
70(2) A regulation under subsection (1) may,
8. (a) vary, supplement or override any provision in Part V or any municipal by-law
passed under Part V as necessary to establish a development permit system;
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Idea is that this is a new planning tool with incorporation from other Canadian
jurisdictions, and it allows municipalities to combine different micro-planning techniques
into one application and approval process with the aim to facilitate development and
make it faster and quicker with less red tape.
Also provides greater flexibility to tailor land-use planning controls for particular sites.
Note that it does not replace the building permit scheme and the building code still
Municipality must adopt an OP with policies for a development permit system for an area
in the municipality, and then must pass a development permit bylaw for the designated
Township of Lake of Bays was the first in Ontario to start using this system in a pilot
program conducted after 2001
The development permit bylaw is considered a form of s.34 bylaws, subject to the
modifications adopted in the scheme.
What this scheme does is to set up a development permit zone in a municipality in which
controls like SPC, minor variances, and other things do NOT apply, but rather the
particular rules of the development permit system embodied in the bylaw applies. It
creates a special development permit zone that differs from other planning law controls.
This development permit system will establish permitted uses and will also establish
discretionary uses, which are uses where you are allowed to do it, subject to getting
approvals and meeting certain standards and conditions. This discretionary system will
be considered and approved by a committee with delegated powers – not the whole
council of the municipality.
According to MMAH, some of the benefits of the system include:
o advantage of a 1-approval system that takes place of zoning bylaw, site plan
control and minor variance and turns them into 1 system
o flexibility – incorporate both systems for permitting uses as well as embedding
development standards into them
o provides a faster framework for getting approvals, e.g. one of the rules says that
an applicant, if no decision within 45 days, has the right to appeal as compared to
the normal 120 days
o Only the applicant has the right to appeal to the OMB if the permit is denied, etc.
Other citizens have no other input/appeal. Public input only given when the
bylaw is set up, but once the scheme is operational there are no general appeal
o Delegation – development permits can now be delegated to an individual
employee or committee and can be heard very quickly
o flexibility of uses – permit will identify a list of permitted uses for the zone and
discretionary uses for the zone, in which development may be permitted if
specified criteria are met
o provides for flexibility of development standards – enunciates minimum and
maximum development standards for the area, without requiring a minor variance
9. environment – allows municipalities to attach conditions to development permits
to fulfill environmental protection objectives
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The minor variance scheme allows landowners to get an exemption from the
requirements of zoning and interim control by-laws
It is administered by the municipality's Committee of Adjustment
Rationale is to provide a system where property-owners can get relief where hardship or
other circumstances make it difficult to meet the standards of a by-law
Minor variances are fairly local in application, and the bulk of them involve residential
properties, e.g. home renovations that take building outside of what ZBL allows
If you do not want to get a minor variance, another option is to get a zoning by-law
amendment, but this is a more complicated and public process
Note that the Toronto website says that their CofA is staffed by “citizen members”
Note that, under s.45(1), in order to bring an application for a minor variance, you must
be an owner (i.e. not a tenant).
The legal test for minor variance had four components (per s.45(1)):
1. The variance is indeed a minor departure;
2. The variance is desirable for the appropriate development or use of the land,
building or structure;
3. The general intent and purpose of the by-law is maintained;
4. The general intent and purpose of the official plain is maintained.
Note that the actual application of this test is heavily fact-specific and depends on the
context of the actual application.
The Courts and OMB have generally declined to give much meaning as to what
constitutes a minor variance, as they see it as a discretionary power of the Committee of
o In contrast to site plan control, it is often found in the jurisprudence that courts
and the OMB have favoured a flexible approach to minor variances – flexible in
what they allow; and the Committee of Adjustment should have power to take a
broader, more flexible approach
See following page – regulatory and procedural framework
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Membership in the Committee of Adjustment
s.44(1) “…. the council of the municipality may by by-law constitute and appoint a
committee of adjustment for the municipality composed of such persons, not fewer
than three, as the council considers advisable.”
Powers of the Committee of Adjustment
s.45(1) “The [Committee], upon the application of the owner of any land, building
or structure affected by any by-law that is passed under section 34 or 38 … may …
authorise such minor variance from the provisions of the by-law, in respect of
land, buildings or structure or the use thereof, as in its opinion is desirable for the
appropriate development or use of land, building or structure, if in the opinion of the
committee the general intent and purpose of the by-law and of the official plan …
(2) “… The CoA, upon application, (b) where the uses of the land, buildings or
structures permitted in the by-law are defined in general terms, may permit the use
of any land, building or structure for any purpose that, in the opinion of the
committee, conforms with uses permitted in the by-law.
Procedural Framework under s.45(1)
An application triggers the minor variance process
New construction needs a building permit, and when you apply for a building permit, they will
make a comparison of building plans with what is set out in the current ZBL, and if they feel
there is a discrepancy, they will alert you that you will need to change plans to conform or apply
for a minor variance
Building Services Dept. of Municipality is a crucial entity in advising a landowner when they will
need a minor variance application or need to change their plans
Also find minor variance applications arising when you want to sell your property, because you
don‟t want to sell it subject to conditions – prior to selling, may go through a process to try to
retrospectively regularize property to make it conform, e.g. seek a minor variance for something
What information needs to be in a minor variance application?
o Need a scale drawing of the size/location of existing building or proposed building,
property lines and dimensions, details about ownership, property description, and an
The municipality will hold a hearing within 30 days – s.45(4)
s.45(5) – notice of application given to persons and public bodies as prescribed – reg. 200/96
details how you give notice, essentially within 60 metres of property must give notice to other
property owners and usually have to post a sign on the property
application will be circulated around municipality and comment solicited, and there will then be a
hearing under s.45(6) – open/public hearing, presided over by CofA who will hear evidence and
make a determination as to whether or not should allow application. Hears evidence from
applicant and submissions by any other person.
Sometimes the CofA may even physically visit the site.
CofA under s.45(8) must give written reasons for judgement
s.45(9) – conditions for approval of minor variance?
Minister or any person with interest in matter must appeal within 20 days
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Subdivision refers to the division of a piece of property into 2 or more parcels, which is
usually done in order to sell off part of the property.
Subdivision Controls refer to the statutory control by the government over the division of
land into smaller parcels.
Under the common law, landowners had a right to subdivide at their desire.
However, subdivision leads to undesirable land-use arrangements, e.g. many small lots in
an inadequately serviced area
o Thus, this common law right has been largely abolished by public regulation
In Ontario, subdivision plans were adopted prior to 1900 – some sort of plan was required
if you were going to sell off units; however it was not until 1912 that the first restrictive
law was implemented
Since 1970, all land in Ontario in urban areas is subject to subdivision controls.
Note that condos are a special kind of subdivision under the Condominium Act
The policy goals of subdivision include:
o to create certainty of boundaries and this can be achieved by the registration with
authorities of plans of subdivision to reduce boundary disputes between
o To ensure that there is adequate lot size – i.e. that lots in subdivision are large
enough to accommodate the intended uses, e.g. house, sewage tank, etc.
o need to have appropriate roads in and out of subdivision and subdivision provides
a framework to ensure that this is accommodated
o Ensure necessary servicing of subdivision at the lowest risk to the taxpayer,
because subdivision controls require developers to pay for certain things such as
new infrastructure (water, roads, sewage lines, etc.)
o helps to create an environment that minimizes nuisances, provides a more
harmonious/pleasant environment for people to live in
o can create a balanced tax base for municipalities – increases number of plots of
land, more owners, therefore more taxes paid
o By controlling subdivision, you can actually control land use – thus, if you want
to protect agricultural land, say that you cannot subdivide it.
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Main Subdivision Rules and Procedures
Subdivision is governed by Part IV of the Planning Act
In order to subdivide land, you need the approval of a plan of subdivision from the
municipality or MMAH under s.50(3)(f) or s.51(16)
The criteria for considering subdivision applications is contained in ss. 51(24) or 53(12)
o Note that this is mandatory – “shall” have regard to this criteria
o Criteria include: effect of the subdivision on matters of provincial interest,
whether plan conforms to official plan, suitability of the land to the purposes for
which it is to be subdivided, issues to do with highways, dimensions and shapes
of proposed lots, (h) conservation of natural resources and flood control,
adequacy of utilities and municipal services, adequacy of school sites, physical
layout of plan having regard to energy conservation
Note that, according to Richardson, this is planning law having regard to
Under s.51(25), a draft approval of subdivision plan can be granted, with conditions
o Municipality/MMAH can either draft approve or approve subdivision proposal
o if draft approved, municipality will have conditions that it will need to meet in
order to obtain final approval and registration of the sub-approval plan
conditions could include road widening, parkland requirements, naming of
streets, rezoning if necessary of the land to allow for uses
51(25) – owner may be required to transfer without compensation some of
the land to the Crown to be dedicated to public purposes such as schools,
highways, buffer strips for wildlife, etc.
51(26) – in most cases, developer will be required to enter into subdivision
agreement with the municipality to ensure that some of those conditions
Subdivision agreements are provided for in ss.51(25)(d) to 51(26)
Any person or public body has 20 days to appeal a decision under s.51(39)
The applicant may appeal to the OMB under s.51(34) if there is no decision in 180 days.
Part Lot Control
To prevent the inappropriate division of already subdivided land in a registered plan of
s.50(5) of the Planning Act
Method for determining that no person or corporation may divided property into smaller
units without special permission
Municipality may pass bylaws to exempt blocks of land within registered plans of
subdivision from part-lot control, so further subdivisions of individual lots can take place
Exemption from part-lot control is commonly used to facilitate semi-detached and
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Development Charges Act, 1997
s.2(1): The council of a municipality may by by-law impose development charges
against land to pay for increased capital costs, required because of increased needs
for services arising from development of the area to which the by-law applies.
(2) A development charge may be imposed only for development that requires,
(a) the passing of a zoning by-law or of an amendment to a zoning by-law under
section 34 of the Planning Act;
(b) the approval of a minor variance under section 45 of the Planning Act;
(c) a conveyance of land to which a by-law passed under subsection 50 (7) of the
Planning Act applies
(d) the approval of a plan of subdivision under section 51 of the Planning Act;
(e) a consent under section 53 of the Planning Act;
(f) the approval of a description under section 50 of the Condominium Act; or
(g) the issuing of a permit under the Building Code Act, 1992 in relation to a
building or structure
10(2) The development charge background study shall include,
(a) the estimates … of the anticipated amount, type and location of development;
(b) the calculations … for each service to which the development charge by-law
(c) an examination, for each service to which the development charge by-law
would relate, of the long term capital and operating costs for capital
infrastructure required for the service; …
Development charges are a tool to help municipalities finance development that is in the
o It is somewhat similar to bonus under s.37; however, bonusing by-laws tends to
be more case-by-case, whereas development charges tend to be applied more
broadly, to the entire municipality or an area of it
s.2(2), above, states what development charges can be charged for
s.2(4), also above, lists things that development charges cannot be charged for, e.g. the
increased costs of the following: provision of cultural or entertainment facilities,
provision of tourism facilities, or waste management
s.5(1) of the Act says that there is a method that must be used in developing a
development charges by-law in order to determine the costs that are to be imposed – must
estimate amount, type and location of development, increase in need for service
attributable to anticipated development, etc.
Under s.11, a development charge by-law may only be passed within the one-year period
following the completion of the development charge background study.
The act also provides other obligations, like public meetings and opportunities to appeal
to the OMB
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Development Charges in Toronto
The City of Toronto Development Charge By-law No.547 (2004)
o This by-law is currently undergoing review.
2008 Schedule of Development Charges under the Toronto By-law:
o Residential Development Charge Per Unit
Single detached and semi-detached dwelling $11,082.00
Apartment unit- two bedroom & larger $7,187.00
Apartment unit- one bedroom & bachelor unit $4,467.00
Multiple dwelling units $8,819.00
o Non-Residential Development Charge Per Sq Metre
Retail Use Only (per sq m of ground floor area) $88.98
Services included in the by-law are:
Childcare Fire facilities
Shelters and housing Police
Emergency medical services Roads
Parks and recreation Transit
Urban development services Sanitary sewers
Development related studies Water
Library Storm water management
There are two contrasting articles that espouse two different points of view on development
Ray Tomalty – “Development Charges” A Lost Opportunity to Encourage Sustainable
Development charges are good and have the potential to combat one of the gravest of
planning problems – sprawl.
Ability to encourage efficient use of urban services because it requires developers to
consider the social cost of development.
Talks about a study he did with interviews of municipal officials – scheme is not being
used in a way that maximizes its potential because they have the authority to charge
lower or higher rates, but do not do so – uniform charges that are applied throughout
o Argues that municipalities should use variable charging schemes.
John Sewell – “Payoff Developing Returns”
compares development charges to s.37 bonusing
Fairly critical of bonusing schemes because he thinks it is a way in which municipalities
can intimidate developers by demanding extra cash without a proper formula to justify
favours the more transparent development charge scheme
Notices that money raised by bonusing can be used more flexibility than that raised
through development charges
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Ontario Home Builder’s Association v. York Region Board of Education (1996) (SCC)
This case provides come commentary on how development charges fit within the planning
Facts: OHBA challenged the constitutional validity of the former development charges of 1990
which had education development charges, which were charges that a developer would
have to pay to fund the cost of new schools required for the growth area. Building
industry challenged educational development charges as a form of indirect taxation and it
was constitutional inadmissible for the province (ultra vires). Scheme allowed
municipalities to pass bylaws which would levy an EDC for the particular location, and
there could be no approval for development until EDC had been paid. In other words –
no building permit could be issued under that act until you had paid the EDC.
Issue: Were the imposition of EDCs an appropriate use of development charges? Were they
Reasons: SCC found that the educational development charges were constitutionally valid as an
ancillary component of the valid regulatory scheme and were within provincial
jurisdiction. SCC found that it was appropriate to impose EDCs as they play a key role in
public planning and managing costs.
Note: Today there are no EDCs under the Development Charges Act – instead, they are dealt
with separately under the Education Act
“… it should not impose further tax burdens on existing residents. The
provision of adequate school facilaties in a given residential development is an
integral element of urban planning. This is reflected in the Planning Act which
explicitly states that the “adequate provision and distribution of educational
facilities …” and the “adequacy of school sites” are important considerations
that must be facted into land use plans.”
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Social Housing Planning in Toronto – Regent Park
Questions to Consider
1. How does the physical form of an area influence its residents‟ social condition – well-
2. How can we create a sustainable community?
3. Has Regent Park actually been a failure – or is the issue societal discrimination and
4. What will be the impacts of the new Regent Park Revitalisation Plan?
Regent Park is the oldest public housing scheme in Canada
o It used to house 7500 people – and was synonymous with a slum/ghetto, crime,
o In 1934, it was a very dilapidated area, with most houses below the minimum
standard of amenities, lack of services, poor construction and conditions, etc.
o Used to known as “Cabbagetown” – crowded, full of crime, etc.
In 1934, the Board in Control of Toronto established a committee to investigate housing
conditions in Toronto. They identified 2 areas of concern, including Cabbagetown – the
Great Depression had caused massive deterioration of the area.
o From this came the idea that the entire area needed to be demolished and a new
housing project built.
o This idea had a lot of support from residents, and a referendum was favourable.
Thus, the municipality began to pass the relevant instruments to allow this project to be
o However, they didn‟t have the money, so the Feds stepped in under the National
Housing Act of 1944, which was designed to facilitate housing for war veterans.
o City of Toronto also created the Housing Authority of Toronto, which was
responsible for the re-development and is now known as Toronto Community
Regent Park was begun 50-60 years ago in the late 1940s, with the establishment of
Regent Park North. In 1967, Regent Park south was opened.
Theory was to create a “garden city” – set apart from the city as a whole, streets removed,
with parks and gardens, etc. – an “oasis in the city”
Originally seen as a success – Albert Rose wrote it 6 years after it was established, and
declared that “It is possible to clear a slum and rebuild a community in the urban core”
o Stated that there were improvements to the living standards of residents –
healthier homes, lower risk of fire, better schools, etc.
o Other jurisdictions looked to Regent Park as a precedent for urban housing
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Today, Regent Park is medium-density development, with smaller roads designed only
for utility vehicles, etc. – often ugly, but with certain charming features (mural).
The perception of Regent Park as a slum began around the 1960s, when it started to
become maligned as unattractive, problematic, etc.
o Media picked this up and ran with it.
Note that Regent Park operates on rent-to-income scheme, i.e. higher income=higher rent
Film – “Return to Regent Park”
Buildings are falling apart – have not kept up with upkeep?
bastion of crime and drugs, and think that police don‟t care, but still has a sense of
Now home to over 10,000 people, which includes people on the periphery of the area.
Core is 7,500 people.
Park is now leased to the Ontario government and managed by the Metro Toronto
Housing Authority, which is the largest public landlord in the city.
big issue in Regent Park is JOBS
some people fall that the crime isn‟t committed by the people who live in Regent Park –
but by outsiders coming in
People are nice, there is a sense of community, 2 community centres, a health centre, lots
of agencies working for the citizens of Regent Park – but still a problem with crime.
John Sewell – planning has a major impact on how land is used and the comfort level of
people – bad social results are caused by the planners, e.g. putting the apartment
structures in a sea of grass with no streets has made the community disconnected and cut
them off from the city around them – no one knows who is in control of all the green
space, and as usual the strongest take over
Dr. Albert Rose – movements to clear in slums in the post-war era; when Regent Park
was built, kept talking that they were “rebuilding a neighbourhood”, but after 15 years
came to the conclusion that they didn‟t know what they were doing
George Burkle – Residents’ Steering Committee – buildings need to be re-built; are
deteriorating and also need social redevelopment, to change the way people think about
their community and themselves – empower and skill development to foster feelings of
self-worth and of community
Place that is so badly planned cannot be well-managed; physical forms need to be
modified in order to provoke changes in human behaviour
Should Regent Park be Torn Down because it is Without a Community?
Is it the people or the dilapidated of the buildings causing the problems?
Sewell argues that it is the way it was planned that causes the problems – the layout and
form of buildings is inappropriate to create a viable, sustainable community
Problems – no main arterial road in Regent Park, no stores, no jobs, and no reason for
people to come into the area – except to sell/buy drugs
Residents were historically not consulted about the development of Regent Park – instead
it was “desktop planning”
J.J. would say that this development has empty, impoverished streetscapes, filled with
negative instead of positive activities – fighting and drugs.
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Building a New Community – Theoretical Perspectives
Jane Jacobs – streets, pedestrians, mixed uses
Gerald Frug – new urbanism (public spaces, higher densities, live-work environments)
Iris Young – social differentiation without exclusion; engage with “the Other”
Leonie Sandercock – social heterogeneity / diversity; conserve urban heritage (mediates social
Andres Duany, Elizabeth Plater-Zyberk & Jeff Speck – “Suburban Nation: The Rise of
Sprawl and the Decline of the American Dream”
“In order to promote community, the built environment must be diverse in use and
population, scaled for the pedestrian, and capable of supporting mass transit as well as the
automobile. It must have a well-defined public realm supported by buildings reflecting the
architecture and ecology of the region”
Environmental Psychology – the idea that you can shape human behaviour through the
built form, the layout of buildings, and the way use is planned, etc.
Regent Park Revitalization Plan
This plan has a 10 to 12 year timeframe.
Demolish virtually all existing buildings in area
The existing 2,087 rent-geared to- income units to be rebuilt in phases, in a mixed-
income, mixed-use neighbourhood. Increased density.
Another 2,500 market units, including 500 affordable ownership units. Total of 12,500
residents in all.
Shops, community services and space for economic development activities.
More streets through the area
Important to consult with community – lots of meetings, open houses, roundtables, etc.
Planning Law Aspects of the Revitalization Plan
Official plan amendment – see bylaw no. 140-2005 (next page)
o This by-law creates the framework for everything else.
Zoning bylaw – technical specifications on permitted uses
Plan of subdivision
Site plan control
o Intended to provide micro-controls over the scale, mass, size, etc. of buildings and
parks in Regent Park
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By-law No. 1400-2005 –
2.2.1 The lands within the secondary plan area will be designated as either Mixed Use
Areas, Apartment Neighbourhoods, or Parks and Open Space Areas – Parks
2.2.4 In Mixed Use Areas development will:
(a) Create a balance of high quality commercial, residential, institutional and open
space uses that reduces automobile dependency and meets the needs of the local
2.3.1 The public realm in the Regent Park Secondary Plan Area will be designed to
physically integrate the neighbourhood with the surrounding area, to integrate public
streets and open spaces together, to create a pedestrian-focused neighbourhood, to
contribute to the greening of Regent Park, to incorporate high-quality streetscape
features, and to be environmentally sustainable
2.3.7 Streetscape improvements in the Secondary Plan Area will contribute to the role
of the street as public gathering space. Development will provide an attractive,
comfortable and safe pedestrian environment.
3.1 Replenishing the stock of social housing is not the only housing goal of this
Secondary Plan. Redevelopment is an opportunity to achieve a full range of housing for
Regent Park, in terms of tenure, form, and affordability. The housing stock in Regent
Park will reflect the diversity of the city‟s residents and their housing needs, with a wide
range of housing types, sizes and affordability, encompassing social housing, ownership
and rental housing. With a full range of housing, Regent Park will become a diverse,
mixed income community.
3.3.1 A wide range of environmentally sustainable approaches and technologies for
the design and construction of development and infrastructure are encouraged in the
Secondary Plan Area. Environmentally sustainable approaches and technologies should
reduce automobile use, achieve energy efficiency, preserve and enhance the urban
forest, make efficient use of storm water and wastewater, and reduce the urban heat
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Key Principles in the Regent Park Revitalization Plan
Renew the Regent Park neighbourhood
Re-introduce pedestrian-friendly streets and park spaces
Design a safe and accessible neighbourhood
Involve the community in the process
Build on cultural diversity, youth, skills and energy
Create a diverse neighbourhood with a mix of uses including a variety of housing,
employment, institutions and services
Design a clean, healthy and environmentally responsible neighbourhood
Keep the same number of rent-geared-to income (RGI) units
Minimize disruption for residents from relocation
Develop a financially responsible strategy
Create a successful Toronto neighbourhood
Improve the rest of Regent Park while redevelopment takes place
It is not just about replacing run-down buildings because they‟re run-down, but
rather is about rebuilding the community and the neighbourhood
But Does the Revitalization Plan Also Run the Risk of Being “Planned to
Does the revitalization plan just create the same problems as the original plan?
Note that relying on market forces may not be an appropriate alternative, as this often just
leads to no planning at all – sprawl and endless subdivisions, traffic, etc.
o Regent Park Social Development Plan (2007)
o Regent Park Neighbourhood Initiative Community Plan (2006)
o Community Services and Facilities Study (2004)
o Regent Park Employment, Skills, and Economic Development Study (2005)
o Strategy for the Provision of Community Services (2005)
o Open Spaces Report (2004).
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Urban Heritage Conservation
N.B. Guest Lecture by Heather Thomson, Heritage Planner with Ministry of Culture
Ministry of Culture
Manages the provincial interest in the protection of Ontario‟s cultural heritage
Administers the Ontario Heritage Act
Develops policy, programs, standards and guidelines for heritage conservation
Works with municipalities to protect and promote community heritage
Works closely with other ministries and agencies, including the Conservation Review
Board and the Ontario Heritage Trust
Cultural Heritage is everything from the past that a community values in the present and
wishes to pass on to the future. Heritage refers to the aesthetic, historic, scientific,
cultural, social or spiritual importance or significance for past, present or future
30 years ago, heritage properties were taken for granted, the heritage community was
marginalized, and the focus was on heritage for heritage sake with limited attention given
to its broader community benefits. There was weak heritage legislation and heritage
advocates tended towards a “one-off” approach to conservation.
Have come a long way since then, and heritage has been recognized as part of the public
interest – a source of knowledge and memory, contributes to quality of life, stimulates
downtown revitalization and economic development and brings tourist dollars to
o Promotes creative, sustainable development – heritage buildings are unique and
adaptable to new uses
In Ontario, heritage conservation is very municipally-driven and is a very “grassroots”
process when compared to European or even American municipalities
Glenn Murray, former Mayor of Winnipeg – pretty cities attract people, sense of
“place”. Paved street don‟t attract people, green spaces and pretty buildings do.
Distillery District is a good example - legislation provided the teeth as to what was
significant and that is what aided re-development while maintaining the historical aspects
In 2005, there were a lot of major changes – stronger policy and legislative framework
for cultural heritage
o Planning Reform –
Provincial Policy Statement, 2005
Planning act changes – The Strong Communities Act (Bill 26)
o New Heritage Legislation
Ontario Heritage Amendments Act, 2005
First major changes in 30 years
o New national framework for heritage
The Historic Places Initiative
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The Provincial Policy Statement 2005
The Provincial Policy Statement (PPS) provides policy direction on matters of provincial
interest related to land use planning and development (including cultural heritage and
archaeology) to those involved in land-use planning.
The 2005 statement includes strong policies for cultural heritage.
2.6.1 Significant built heritage resources and cultural heritage landscapes shall be
o “Conserved” Means the identification, protection, use and/or management of
cultural heritage and archaeological resources in such a way that their heritage
values, attributes and integrity are retained. This may be addressed through a
conservation plan or heritage impact assessment.
2.6.2 Development and site alteration shall only be permitted on lands containing
archaeological resources or areas of archaeological potential if significant archaeological
resources have been conserved by removal and documentation, or preservation on site.
o Where significant archaeological resources must be preserved on site, only
development and site alteration which maintain the heritage integrity of the site
will be permitted.
2.6.3 Development and site alteration may be permitted on adjacent lands to protected
heritage property where the proposed development and site alteration has been evaluated
and it has been demonstrated that the heritage attributes of the protected property will be
o Mitigative measures and/or alternative development approaches may be required
in order to conserve the heritage attributes of the protected property affected by
the adjacent development or site alteration.
o Note that this means that you must now be sensitive to the heritage value of
adjacent sites, e.g. Consider Fort York with all the condos surrounding it,
blocking the historically-important view of the waterfront.
Recall that planning must now “be consistent with” the PPS, rather than merely “have
regard to” it
Changes to the Planning Act – Bill 26
Changes implementation standard for the PPS from “shall have regard for” to “shall be
Reinstates the provincial interest
o e.g. for OP amendments, ZBLs, the Minister of Municipal Affairs would have
authority to declare a matter before the OMB to be of provincial interest
Tools under the Planning Act
o Municipalities have a variety of planning tools with which to ensure that heritage
resources are conserved – OPS, strategic zoning, IC by-laws, Community
Improvement Plans, Conservation Plans, Heritage impact assessments, Cultural
Heritage Master Plans, subdivision control
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The Ontario Heritage Act
Provides the legislative framework for cultural heritage conversation in Ontario
The Act is enabling – gives municipalities and the province powers to preserve Ontario‟s
Not downloading, but a municipal interest because in many cases it is about local values
Main focus is municipal protection of heritage buildings and districts and the provincial
protection of archaeological sites
speaks to protection for heritage properties, individual property designation, heritage
conservation districts and archaeological sites
Protection Tools under the Ontario Heritage Act
Listing on municipal registers
o As of 2005, municipalities are required to maintain a register of properties within
their borders that may have heritage value
o Designate individual properties as having heritage value, which is done by a by-
law that describes the property and states why it has cultural heritage value
o Protects an entire area for heritage value; can be large or small area
o Individual agreement with property owner indicating what can or cannot be done
to the property; usually associated with getting grant funding.
Provincial designation – NEW
o Province as of 2005 can designate properties; prior to 2005 they could not and
only municipalities could designate (other than archaeological sites)
Other forms of recognition and commemoration:
o Local plaque or marker
o Educational programs, tourist brochures
o Provincial plaque
o National Historic Site
o Canadian Register of Historic Places
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Heritage Designation - Impact
Recognizes a property‟s cultural heritage importance to a community
Helps to ensure the conservation of the property for the benefit and enjoyment of present
and future generations
Prohibits alteration or demolition of the property without the consent of the municipality
However, Heritage designation does not:
o prevent sale of a property
o prevent use of the property for another purpose
o permit public access to the property
o stop all changes to the property – it recognizes that over time changes to a
property will be necessary and even desirable
Heritage designation is all about influencing how changes are made, so that as far as
possible heritage value is preserved
Note that many municipalities have citizens‟ heritage communities, which go by different
names but provide advice to council on different historical properties
Note that designation is about alternation – not that you have to restore it, but is mainly
about alternations/changes to the property
There does not have to be compensation for the designation of something as a heritage
site, but there are heritage grants administered by the municipalities
Individual Property Designation Process (Under Part IV of OHA)
Municipal council considers the designation proposal, in consultation with its Municipal
Heritage Committee (required under Act), and gives notice to the owner and to the public
o Conversely, owner of property or interested party could make a request for the
property to be designated.
Property must meet the significance criteria prescribed by regulation in order to be
If there is an objection to the designation, the matter goes to the Conservation Review
o Note that the CRB only makes a recommendation to the municipality; it is still the
municipality with the ultimate decision-making power
After considering the CRB report, municipal council makes the final decision
Note that there is a provision allowing municipalities to create special heritage property
standards by-laws to stop people from letting heritage properties go to pot.
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Case of Tremblay v. Lakeshore (2003)
In this case, the owner of the property was not in agreement with the heritage designation
(wanted to demolish the subject Church). Municipality did not want to get involved
because the owner did not want the designation, but a local citizens‟ group launched a
court case to try and get the property designated.
Decision – municipality was at fault, because deciding not to designate the property only
because the owner did not agree was contrary to the Heritage Act
o Municipality has a responsibility to at least consider a request to designate.
“In order to protect the heritage of Ontario, municipalities have been given the power to
designate the properties of their choice and thus to suspend certain private property
rights. Those provisions of the Act must be applied in such a way as to ensure the
attainment of the legislature‟s objectives…Requiring the consent of the owner is not
consistent with an overall reading of the Act or its purpose.”
This case means that people can request a designation for any site, even if they have no
connection to it, and the municipality is obligated to entertain the request regardless of
whether or not the property owner wants the designation. It must at least be discussed in
council before the decision is made.
Note that this case is significant re: compensation and deference/municipal
Evaluating Heritage Properties
Standard designation criteria prescribed by Ontario Heritage Act Regulation 9/06
o Design or physical value
o Historical or associative value
o Contextual value
Municipal Powers to Prevent Demolition
Ontario Heritage Act enables municipalities to prevent, rather than delay, the demolition
of designated heritage property
Owner must apply for permission to demolish or remove buildings or structures
If municipality refuses application, owner has right to appeal to the Ontario
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Provincial Powers to Protect Heritage Properties
The minister of Culture, in consultation with the Ontario Heritage Trust, can:
o designate property of provincial significance
o Prohibit demolition or removal of a building or structure on a designated
property of provincial significance
o Issue a stop order with respect to any property to prevent alternation, damage or
demolition/removal of any building or structure on the property if the minister is
of the opinion that the property may be of provincial significance – even if it
hasn‟t been designated yet
Note that the Ministry only intervenes as a last resort if it is a provincially significant site
Heritage Conservation District Designation (Part V of OHA)
Council may by by-law designate an area of the municipality as a heritage conservation
OHA requires that new districts have a Heritage Conservation District Plan:
o plan defines objectives
o describes the heritage character of the district
o sets out guidelines for managing change in the district
o may exempt minor alterations from approvals
Currently there are about 75 of these in Ontario, e.g. Niagara-on-the-Lake
Municipal by-laws and public works must be consistent with objectives of the HCD plan
(plan prevails in event of conflict)
A person who objects to the district designation may appeal to the OMB.
o The board holds a hearing and makes a final decision.
In a designated distract property owners may appeal municipal decisions to refuse
applications for demolition, alteration or new construction to the OMB
Act also enables municipality to enact interim control by-laws for districts under study,
like interim controls under Planning Act. Interim control by-laws are also appealable
to the OMB.
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Heritage Appeals before the OMB
The OMB hears appeals under the Ontario Heritage Act:
o Part IV
Demolitions of individually designated property
o Part V
Objections to Heritage Conservation District designations
Demolition, alteration, new construction in HCDs
Interim control by-laws for HCDs
The OMB also deals with heritage issues in appeals under the Planning Act, e.g. zoning
by-laws, OP amendments
There are a number of considerations when dealing with appeals concerning heritage
o Under OHA there are no statutory tests for municipal decisions that OMB would
have to apply in appeals
o Nothing to show what interests take precedence
o In demolition cases, heritage value or importance of property would normally
have been established through designation process and Conservation Review
Note that the OHA allows members of the Conservation Review Board (CRB) to be
cross-appointed to OMB panels hearing appeals under the OHA
o This only affects appeals to the OMB under the OHA, not under the Planning Act
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An archaeological site is: any property that contains an artefact or any other physical
evidence of past human use or activity that is of cultural heritage value or interest;
includes marine archaeological sites
o There are over 17,000 registered archaeological sites in Ontario
Threats to archaeological sites include:
o Development & Redevelopment
Subdivisions, urban and industrial redevelopment, highways, pipelines,
transmission corridors, cottages, pits & quarries, etc.
“Pothunters”, metal detector enthusiasts, bottle collectors, other
collectors, antiquarian dealers.
o Lack of Information
The value and extreme sensitivity of archaeological and other heritage
sites is not understood.
The Ontario Heritage Act provides protection for archaeological sites:
o Under Section 48(1), it is illegal to alter an archaeological site or carry out
archaeological fieldwork without a license.
o Minister of Culture determines who is eligible for a license and sets terms and
o Terms and conditions of license include:
standards and guidelines for fieldwork
requirement to keep archaeological collections in safekeeping until
deposited in a public institution
o Site registration
Ministry of Culture maintains a database of registered archaeological sites
o Municipal designation
o Provincial designation
o Special protection for marine archaeological sites since 2005, e.g. not allowed to
dive to sites that are significant and fragile
Note that individual designation of archaeological sites under Part VI does require
o This is the only designation under the OHA that requires compensation.
o The reason that this designation requires compensation whereas individual
designation of a heritage site does not is because with a heritage site, the property-
owner can still use their property so long as the heritage attributes outlined in the
by-law are protected. When a property is designated as a provincially-significant
archaeological site, however, the assumption is that the use of that property would
be severely restricted in order to preserve artefacts and cultural features, thus
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Other Legislation that Address Heritage Conservation
Environmental Assessment Act
Aggregate Resources Act
Provincial Parks Act
Niagara Escarpment Development & Planning Act
Public Lands Act
Forest Sustainability Act
Opportunities and Challenges
Growing awareness and understanding of the new policy/legislative framework for
o Planners / consultants
o Property owners
o Members of the public
Policy implementation at the provincial and municipal levels
Trail blazing with each individual situation in the new environment
o For example: provincial designation; raises questions on when province should
get involved as it sets a precedent for future involvement
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Aboriginal Peoples – Reserves and Land Use Planning
There is not a lot of traditional high-level land use planning happening on reserves in
Canada; however, this is likely to change in the next 10 to 15 years
There are 615 First Nation Communities in Canada, with the majority of them located in
There are 2845 reserves, ranging in size from tiny to huge.
The amount of reserve land is currently increasing through Treaty Land Entitlement
(TLE) and Additions to Reserve (ATR) processes.
Factors that must be addressed for ATR – existing land uses, leases, tenure, etc have to be
addressed, environmental issues – must be environmentally clean before added to
reserve, as this becomes a federal liability, infrastructure – addressing servicing
agreements with neighbouring municipalities – roads, water, sewer, garbage disposal, etc.
– these are some of the issues that must be addressed before an ATR is completed.
TLE addresses historical issues, e.g. the return of ancestral land.
Note that many communities have more than one reserve.
Many reserves, especially the small ones, have their own infrastructure. Others get
servicing from neighbouring municipalities under contractual arrangements. Others have
their own servicing, e.g. diesel generators – they are “off-grid”.
There are a number of urban reserves, for example the Squamish in Vancouver, with a
reserve in the heart of downtown. They are currently working on developing high-rise
o Thus, reserves are not homogenous; although the bulk are still small, rural
Population increase on reserve lands creates a great deal of pressure for infrastructure
improvements, and the need for commercial and industrial development on reserve lands
o Employment is a large problem on many reserves, particularly those in rural areas
and not near urban centres which generate employment
o In turn, the need for better infrastructure (including schools, community
buildings, recreation, housing, etc.) creates a great deal of pressure for changing
land use to accommodate these needs.
o Unemployment rate for Indians on reserve was 27.9%, compared to Canadian
average of 6.5%
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On reserve, there are over 25 different sectoral plans required &/or funded by INAC
o They include: land use plans, health plans, physical development plans, capital
plans, forest management plans, management development plans, emergency
plans, human resource plans, social plans, comprehensive community plans,
economic development plans, etc.
o Some are mandatory; others, including land use planning are not
Each of these programs requires the First Nation to report back to the department on how
the funding as been spent, etc.
o This results in administrative burden at the local level.
Note that there is no specific source of funding for land use planning – there are pots of
money available, but no single source of fund nor any legislative requirement for FNs to
conduct land use planning on reserve.
o However, some of these plans may comprise elements of a land use plan – capital,
physical development plans, forest management, economic development plan
The system is extremely fragmented, with each different program requiring reporting, etc.
o The funding itself is also fragmented, with planning occurring on a piecemeal
basis, and several communities saying they need more strategic planning
Note that As a result of the influx of money, INAC Minister is accountable for
administering all that money and for how that money was spent and what the results
achieved are – all this reporting must be done by the band councils to account for the
The government provides over $8 billion dollars to Aboriginal communities, through a
suite of 360 programs, administered by 34 federal departments and agencies.
o INAC administers over $5 billion the majority for social, education and
o First Nations administer approximately 80% of the departmental programming
dollars themselves – again, local accountability.
Comprehensive Community Planning (CCP)
Comprehensive community planning is an integrated community based planning process,
which results, at a minimum, in a strategic level plan that addresses the elements of
o Environment (including land, infrastructure and housing);
o Social (including education, and health);
o Governance; and
Many communities are starting to focus on the development of community strategic plans
which incorporate the elements of land use planning, but are not as detailed as a typical
o The primary issue in many of these plans is resources
In order for the CCP to be effective, the process must involve elders, youth, the
unemployed, etc. to figure out where they want to go and how to get there.
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Municipal Land Tenure
Most land in Canada is held in fee simple.
There are some federally-held lands – e.g. airports, National Parks, reserve lands, etc.
There is also some provincially-held land, e.g. Provincial Parks.
Municipal official plans and ZBLs do NOT apply to federal or provincial land.
o However, the applicable department or Crown agency may apply the plans and
by-laws as a matter of policy.
This can cause significant difficulties for First Nations reserves.
Title is vested in Her Majesty and set apart for the use and benefit of a First Nation
o Reserve land is set apart by Royal Prerogative or statutory authority
o Section 91(24) of the Constitution Act – federal government has legislated
authority over Indians and lands reserved for Indians
Minister responsible for approving land use activities on reserve, in accordance with the
Indian Act (IA) and its regulations
o Regulations – mining, timber and waster management
First Nations decide how to use reserve lands – department seeks FN consent for all
No legislated authority requiring long-term land use planning on reserves
IA provides FN by-law authority for developing land use plans and zoning and site plans
o No redress mechanisms (i.e. right of appeal)
o Unlike the provinces, there is no legislated requirement for public consultation
o Minimal penalties
$1000 dollars and up to 3 months in jail, no matter what bylaw you breach
– this is the maximum allowable penalty
o Minister has ultimate approval of s. 81 by-laws
There is communal ownership of reserve land
o This means the land is set aside for the benefit of the band, not an individual
o Exception – certificate of possession
Can be held by an individual or a family
Some reserves have high numbers of CP holders, and some have the bulk
of their land in communal ownership.
Reserve lands cannot be mortgaged, pledged or charged to a non-Indian (s. 89 of the
o In order to address this, there are Ministerial Loan Guarantees in order to
support some activities, e.g. buying a home, that are difficult to do without being
able to secure a mortgage.
Land management powers can be delegated to FNs under ss. 53 and 60 of the IA
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Land Management on Reserve
The primary means of land management on reserves is contractual mechanisms
between third-parties and INAC (Minister of Indian and Northern Affairs Canada)
o Three main types are permits (short-term activities, e.g. for agricultural permits or
sand and gravel pits – to get a permit you need an EA), leases and licenses are
more long-term activities.
o Before lease or license can be issued, land must be designated for those purposes.
o If you get an absolute surrender, can lose the reserve status and the band has to do
a designation and have a referendum on whether they want to be designated for
that type of activity.
o An absolute surrender would lose reserve status.
Designation gives the opportunity to put in a lease or license to a third-
party without removing the reserve status, e.g. to build cottages or a gas
station – need community consultation by a vote.
Regulatory Gap on Reserves
s.88 of IA –”all laws of general application from time to time in force in any province are
applicable to and in respect of Indians in the province”
Courts have ruled that laws relating to land use generally do not apply on reserve.
o Due to the inapplicability of provincial laws, most if not all provincial
environmental laws relating to land use do not apply on reserve, resulting in a
Most activities on reserve are managed through contractual mechanisms, incorporating
provincial standards as terms and conditions.
o contractual remedies, versus legislated penalty structures
o departmental administrative gaps in application of provincial type standards
Note that Federal laws do apply on reserve, but there are no federal land use laws.
o However, much of the Federal environmental legislation applies – TDGA, CEPA,
CEAA, SARA, Fisheries Act, etc.
o Provincial environmental laws are what sets the standards, not the federal ones,
which is why this is such a big problem, e.g. consider CoAs for discharges or
water-taking, which are administered under the Ontario government
There is no ability to regulate how activities are run – this is very significant when there
is such a low rate of employment and trying to encourage jobs and business, but without
any rules to regulate these activities
Departmental administrative gaps in the application of provincial-type standards – may
not have the capacity to ensure that terms and conditions are being met
The result of this regulatory gap is:
o Minimal long term land use plans and zoning by-laws on reserve
o Majority of land use planning occurs through piecemeal site specific processes
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Planning Process on Reserve Lands
Similar to municipal site development planning process
o Reviews layout of site features
o Enters into agreements
Includes terms and conditions, including requirement to comply with
o Environmental Assessment required for projects
Recall that all of this is going on with consultation from the First Nation – however,
there can be many different proponents
o However, in the end it is the Minister who signs the document and is responsible
for its administration.
Differences from Municipal System
o Inclusion of financial requirements (“Indian Moneys”, e.g. timber royalties which
are held by the Ministry and the FN has to request money back and then spend it
in compliance with IA)
o Contractual remedies
Factors Affecting Long-Term Planning on Reserve Lands
Two year election cycle
Lack of dedicated resources
o There are no dedicated resources to support LUP on reserve lands
Lack of capacity within the community, band administration or the people themselves
o Lack the necessary technical background to know/understand what goes into LUP
Minimal penalty and enforcement mechanisms
o Ability to actually enforce by-laws as many issues; ability to take something to
court is low and everyone knows it
o s.81 provides authority to make bylaws and the penalty structure (which is
minimal) and it is the Minister who has the ultimate approval for the bylaws
Internal community fractions
No legislated requirement for public consultation
Lack of clarity on responsibility for land management on reserve
o First Nations says it is Minister‟s responsibility; Ministry says that they don‟t do
anything until First Nation asks – lack of ownership as to who is responsible
Fragmented federal approach to funding
CP Holders – courts have ruled that CP holders can go to the Minister directly for a lease
for a third-party to come onto the land; doesn‟t even have to go through band council
which bypasses any community planning
Different forms of land ownership – not just reserve land, also traditional provincial land
(hunting and fishing), fee simple land (i.e. living off reserve), first nations corporation
may own land in the province
o With such a wide variety of land tenure options, so how do you manage all the
money and all the different land tenures?
o N.B. - All the non-reserve land: provincial laws (incl. planning) apply.
Lack of mutual trust and respect on both sides.
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Benefits of Long-Term Planning
Improved decision making
Improved land and environmental management
o Land use compatibility, etc.
Improved public involvement in decision making
Less political interference in decision making
More certainty for economic development
Improved relationships with stakeholders, including neighbouring municipalities
Different tenures on FN land (reserve, fee simple, traditional lands, 91(24) lands)
Lands Branch is working with interested First Nations to develop the necessary
legislative tools and inter-governmental agreements to enable First Nations to assume
authority and responsibility over their lands, resources and environment, in
alignment with the priorities, particularly:
o Modernizing program governance with standards for service and accountability
comparable to provincial/territorial regimes
o Legislating alternatives to Indian Act provisions that ensure certainty, stability
and respect for the rule of law, and balance collective and individual
o Self-government that provides for the devolution of full legal and democratic
responsibility to First Nations for their own affairs within the overall
constitutional framework of Canada
o Advancement of the resolution and implementation
Note, however, that it is integral to provide sufficient capacity and training if you are
going to download responsibilities onto the Bands.
Spectrum of Management on Reserve (from least to most control by FN)
o Indian Act
o FNCIDA (First Nations Commercial and Industrial Development Act)
o IOGA (Indian Oil and Gas Act)
o RLAP & 53/60
o RLEMP (Reserve Land and Environment Management Program)
Sectoral Governance Arrangement
o FNLMA (First Nations Land Management Act)
o FNOGMMA (First Nations Oil and Gas and Moneys Management Act)
o Complete governance/land management by First Nations.
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Categories of First Nation Lands
Indian Act Reserve Lands
Title is vested in Her Majesty and set apart for the use and benefit of a First Nation
FNs have a recognized interest in reserve land that includes the right to exclusive use and
occupation, inalienability and the communal nature of the interest
Surrender of the interest can result in title vesting in the province
In most of the provinces where title has not been formally transferred, agreements are in
place to continue federal administration and control of the lands in the event of a
surrender. No such agreement exists with Quebec
Includes lands subject to the Indian Act, the Indian Oil and Gas Act (IOGA), the First
Nations Commercial and Industrial Development Act (FNCIDA), the First Nations Land
Management Act (FNLMA) and the First Nations Oil and Gas and Moneys Management
o But see additional considerations for lands managed under these Acts on the
Federal Crown has jurisdiction and primarily governs under the Indian Act
First Nations are consulted on management decisions, which are federal Crown
FNs have limited by-law making powers under the Indian Act
Indian Act Sections 53 and 60 authorize delegation of land management to FNs, which is
the basis for the Reserve Land and Environment Management Program (RLEMP)
Leases, permits, easements and licences
Allotments and transfers of lawful possession to FN members
RLEMP / FNCIDA / IOGA -- PILOT PROGRAM – see also page 861
RLEMP was designed in partnership with First Nations for the First Nations currently in
the Regional Land Administration Program (RLAP) and 53/60 Delegated Authority
Programs, as well as for all other First Nations wishing to develop increased land and
resource management expertise to assume greater responsibility for land and
environmental management on their reserves.
RLEMP includes First Nation land management training and certification of land
FNCIDA provides for the creation of federal regulations importing provincial regulatory
regimes to reserve lands for the regulation of large and complex commercial and
industrial development projects
Amendments to the IOGA and Regulations are being developed to strengthen and
modernize Canada‟s ability to manage and regulate FN oil and gas resources
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First Nations Land Management Act Lands – see also page 857
In 1996, 14 First Nations seeking greater control over their lands and resources negotiated a sectoral
governance arrangement with Canada, as set out in the Framework Agreement on First Nation Land
Management & ratified by Parliament through First Nations Land Management Act on June 17, 1999.
Title continues to be held by Her Majesty
All other characteristics of reserve land title continue to apply
50 signatory First Nation (20 First Nations operating under their land code)
o 45 developmental, 4 on hold, and an additional 45 who have expressed an interest
in becoming signatories
o Land Code = administrative document of how they are going to govern land.
Federal jurisdiction with FN option to take jurisdiction over lands and resources
FN has law-making jurisdiction over its reserve land, resources and environment (except
oil and gas)
FN has law-making jurisdiction over matrimonial real property rules and procedures
All land management decisions are made by the FN
Leases, permits, easements, individual interests and any other interest established under
FN Land Code and law-making authority
Individual transfer agreement is a document that legally transfers the land management
sections of the Indian Act – s.21(1) lists the 34 specific sections of the IA that will not
apply to these first nations, including mining, timber and waste regulations.
First Nations Oil and Gas and Moneys Management Act Lands
Title continues to be held by Her Majesty
All other characteristics of reserve land title continue to apply
3 First Nations preparing to vote, approximately 219,325 hectares
Federal jurisdiction with FN option to take jurisdiction over oil and gas resources,
associated revenues and other Indian monies
FN has law-making jurisdiction over oil and gas resources within their defined reserve
All land management decisions related to oil and gas exploration and exploitation are
made by the FN
Any interest related to the exploration and exploitation of oil and gas on reserve
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Self-Government Agreement Lands
Title can be held by the federal government (e.g., Westbank) or the First Nation, either as
91(24) (e.g., Sechelt, Kanesatake) or not (e.g., Nisga'a)
In the Cree Naskapi Agreement title is held by Quebec
17 Self-Government Agreements in force or concluded in 36 communities across Canada,
quantum of land unknown
FN has law-making jurisdiction over land and resources and other sectors, as negotiated
(i.e. health, education, policing, etc). All land management decisions are made by the FN
Leases, permits, easements, individual interests and any other interest established under
FN law-making authority
Off-Reserve, Non s.91(24) Lands
Fee Simple - Title held by FN
Traditional Lands - Usually on provincial Crown land, over which the province has title,
sometimes on federal Crown lands
No records are kept on FN Fee Simple holdings and quantum.
Records for Traditional Lands exist for some types such as settlement land, but often the
land is not specifically defined and the quantum is unknown
Fee Simple under provincial jurisdiction. All land management decisions are made by FN
Traditional lands under provincial jurisdiction, subject to existing Aboriginal rights
and/or any provincial/FN co-management agreements
Fee Simple - All interests available under provincial regime
Traditional Lands - Interests defined by Aboriginal rights or co-management agreement
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Individual Transfer Agreements
Individual transfer agreement is a document that legally transfers the land management
sections of the Indian Act
o s.21(1) lists the 34 specific sections of the IA that will not apply to these first
nations, including mining, timber and waste regulations.
o From the minister to the first action, who becomes liable, responsible and
accountable for those sections.
Note that any environmental problems that happened when under
ministerial control are still the responsibility of the minister –
environmental site inspection done before land code and individual
transfer community goes to a vote.
Community has to vote on both land code and individual land transfer
agreement – about 20% fail the vote.
o once the transfer goes through, band is responsible for everything except Oil and
Gas surrendered under the Indian Act, which remains under the Indian Oil and
Gas Act (FNOGMMA – First Nations Oil and Gas Money Management Act)
Under FNOGMMA, if band wants to take on responsibilities for managing
the money, they can do that – I think.
First Nations Land Management
Benefits for Long-Term Planning on Reserve
Developmental process provides supporting information
o Legal description
o Legal boundaries (internal and external)
o Identifies environmental conditions and issues
Land Code – administrative document
o Public consultation – improved public involvement in decision-making process
o Conflict of interest
o Redress mechanisms
o Approval process
FN ownership of land management responsibility, including associated liability
o Directly accountable to reserve residents and other stakeholders
Opportunity to establish appropriate penalty structures
Improved relationships with stakeholders, through formal and informal arrangements
Note that many First Nations have expressed significant interest in pursuing land-
use planning, and in building relationships with stakeholders
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First Nations Law-Making Powers (Not Exhaustive)
Power to make laws, in accordance with their land code, respecting the development,
conservation, protection, management, use and possession of FN land
Regulation, control and prohibition of zoning, land use, subdivision, & land development
Creation, regulation and prohibition of interests and licences in relation to FN land
Environmental assessment and protection
Provision of local services
Note that both federal laws as well as all other sections of the Indian Act continue to
apply in addition to laws made by the FN under these powers.
Environmental Planning on FNLM Reserve Land
EA process and Law
EMA – agreement signed by FN with a land code in effect, Minister of EC and Minister
EMA – plan of the environmental protection laws FN will develop, and will include
information on timing, resources, inspection and enforcement
Provincial engagement – building relationships
FN must identify which issues they want to develop laws for, and which they want to
utilize other environmental management tools for (e.g. land use planning/zoning,
Environmental Assessment, etc.)
This provides the FN with the ability to create a comprehensive environmental
planning regime - allows them to address their liabilities.
Seems likely the most laws will reflect provincial laws and standards.
Note that, to date, there have been no environmental management agreements put
Jurisdiction – many communities feel that their authority is equivalent to a province, and
only want to work with feds? have the legislative authority equivalent to a province,
something about administrative gap
Lack of consultation with FNs on activities occurring off reserve – by provinces and
municipalities; doesn‟t help the relationship building.
Impacts of off-reserve activities migrating on reserve, e.g. illegal dumping on reserve
because of the lax penalties or air and water emissions onto the reserve land.
Province took decades to develop current land, resource and environmental regulatory
regimes and infrastructure.
FNLM First nations are developing the same level of regimes, and require time, capacity
and resources to do so.
Thus, in the next 10 years, land, resource and environmental planning on reserve will be
much different than that which exists today.
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