Bill 73, the “Smart Growth for our Communities Act”, has now been passed and a few amendments are in full force and effect, with most awaiting Proclamation.

Highlights of the amendments that will be proclaimed include:

• Section 2 of the Planning Act now includes an additional matter of provincial interest for decision makers to consider: the promotion of built form that is “well designed, encourages a sense of place, and provides for public spaces that are of high quality, safe, accessible, attractive and vibrant”. It will be interesting to see how “high quality, attractive and vibrant” especially are interpreted; both by municipalities and the Board.

• There is a moratorium on amendments to Official Plans and zoning by-laws within 2 years of passing a new OP or comprehensive zoning by-law. A similar moratorium is imposed for minor variance applications within 2 years of passing a site specific zoning amendment.  The intent is to prevent changes to newly approved policy, but the effect may be to hinder legitimate applications and the ability of a municipality or land owner to make administrative corrections or respond to changing circumstances.

Council may waive this moratorium, but it requires a separate decision of council (which may be site specific, specific to a class of applications or of general application).  In our opinion, it would have been preferable to give municipalities the authority to prohibit amendments when enacting approvals, rather than enacting a blanket prohibition and requiring a waiver.

• After receiving a notice of appeal from a non-decision, an approval authority may now issue a notice that contains certain information (prescribed by regulations that have not been drafted as yet). The notice must be provided to all persons or public bodies that made a written request to be notified of the approval authority’s decision. Twenty days after this notice is provided, no other person or public body will be entitled to appeal the non-decision. This will not prevent other persons from seeking party status at the appeal.

• An approval authority will now be restricted from approving any part of a lower-tier’s adopted official plan that does not, in the approval authority’s opinion, conform with the upper-tier official plan. This includes conformity with any new upper-tier official plan or conformity with an amendment made to the upper-tier official plan that was adopted no more than 180 days after the lower-tier municipality adopted its plan.

• Municipalities can now ask for alternative dispute resolution after certain appeals are filed, and delay preparing the Board record for 90 days. This change has the potential to reduce the burden on staff and also allow for a resolution before the appeal is placed in the Board system.

• Every official plan must now contain a description of the measures and procedures for informing and obtaining the views of the public in respect of proposed official plans (and amendments), zoning by-laws (and amendments), plans of subdivision and consents to sever. Adding procedures for informing the public regarding other types of Planning Act approvals will remain discretionary.

• When issuing decisions on official plan amendments, zoning by-law amendments, minor variances, consents, and plans of subdivision municipalities will now be obliged to explain the effect of written and oral submissions received with respect to their decision on the application. We question how detailed this obligation must be and what impact, if any, the explanation will have on appeals?

• The OMB will now have regard for the material that was before council when it failed to make a decision (subdivision and re-zoning). This will allow the Board to consider more directly comments from the public that were before council, as well as the material (or absence of material) from the applicant.  In practical terms, the Board must still conduct a full hearing and its decision will be based on all of the evidence presented at that hearing, whether or not it was material that was also available to council.  This change is unlikely to have any meaningful impact on appeals.

• The four part test for a minor variance will remain unchanged. However, the amendments introduce additional criteria to be prescribed by regulation (no draft has been prepared as of yet) and authorize individual municipalities to establish their own criteria by by-law.

The effect of these changes will be to ultimately allow each municipality in Ontario to create its own additional minor variance test.  The extent and impact of this change will be determined in large part on the content of the provincial regulation that provides prescribed criteria to which a minor variance must conform.

• Mandatory planning advisory committees will now be required for upper tier and single tier municipalities, with at least one member from the community on the committee.

There are a number of positive steps contained in the amendments.  Some of the amendments have the potential to add unnecessary cost and effort to process planning applications/appeals, while others should improve certainty.  The impact of some of the changes cannot be predicted without seeing the detailed regulations.