Agenda Item ## Page # Planning Reform Initiatives TO: FROM: SUBJECT: CHAIR AND MEMBERS - PLANNING COMMllTEE R. W. PANZER GENERAL MANAGER OF PLANNING AND DEVELOPMENT PROVINCIAL PLANNING REFORM INITIATIVES: PLANNING ACT REFORM AND IMPLEMENTATION TOOLS, PROVINCIAL POLICY STATEMENT, AND ONTARIO MUNICIPAL BOARD REFORM JULY 26,2004 RECOMMENDATION I1 That, on the recommendation of the General Manager of Planning and Development, the attached report on the Provincial Planning Reform Initiatives BE RECEIVED for information and discussion purposes and that Council endorse the Comment Summary and Discussion sections of the report for submission to the Ministry of Municipal Affairs and Housing. II I COMMENT SUMMARY I The provincial government is moving fotward with an ambitious timetable for changes to the Planning Act, Provincial Policy Statement (PPS) and Ontario Municipal Board. Planning staff have reviewed the discussion documents circulated by the Ministry of Municipal Affairs, participated in a Ministry sponsored workshop, networked with planners from other municipalities and reviewed previous reports. The following summary comments have been prepared for Council s consideration. Staff comments on the Provincial Planning Reform Initiatives are identified as follows: Bill 26 - Strong Communities Act The extended timelines for processing Official Plan, Zoning By-law, plan of subdivision and condominium applications under Bill 26 are supported; however, it should be emphasized that an effective application review process and timeline is contingent upon the availability of adequate information to make a decision on a land use application. The proposed changes should not limit municipalities to respond to emergent opportunities or unique circumstances that may warrant minor growth area expansion outside of a comprehensive five year Official Plan review process. A provincial interest should be communicated prior to a decision by municipal Council so that the integrity of the local decision making process is not undermined. The change to a test of consistency with rather than having regard to the Provincial Policy Statement, together with appropriate changes to the PPS, will ensure that provincial policies and priorities are better understood and appropriately applied. Planning Act Reform and Implementation Tools c3 Include requirements in the Planning Act for the submission of a complete application. A complete application should include information reasonably required by the municipality to process an application, apply Provincial and Municipal planning policies, and make a well informed decision. The specification requirements for what constitutes a complete application should be left to the determination of the municipality provided that such requirements are generally set out in the municipality s Official Plan. I II
Plan n in g Reform I n it iat ives c3 The proposed Provincial Policy Statement revisions should be adopted concurrently with Bill 26 so that the two dates match. c3 Increase the time frame for the approval of drawings for site plan applications from 30 days to 90 days. c3 Increase the time frame for decisions relating to a demolition permit from 30 days to 60 days. c3 Place a time limit of 20 days following Council s decision for an appeal to the Ontario Municipal Board of zoning by-law amendments that have been refused by Council under section 34 of the Planning Act..3 Permit municipalities to acquire all or any portion of a road located entirely within a property that is subject to a site plan approval under Section 41 of the Planning Act. Provincial Policy Statement: Draft Policies The following matters require further direction to effectively define and protect provincial interests in land use planning: i. Addition of design principles to: encourage new development adjacent to existing development to identify with and be sensitive to the existing character of surrounding area.. encourage well designed buildings and spaces. emphasize the orderly development of safe and healthy communities. ii. Provide an appendix of (or link to current) guideline documents. iii. Support partnerships and incentive based approaches for the provision of affordable housing. iv. Add a requirement to demonstrate that residential intensification will maintain the stability and integrity of the surrounding built-up area. v. Strongly discourage lot creation in prime agricultural areas. vi. vii. viii. ix. Strengthen wording to state: a comprehensive approach will be achieved for managing natural heritage resources which cross municipal boundaries. Provide for incentives to landowners to protect significant heritage resources and other public bodies for the acquisition of these resources. Clarify the means of identification of appropriate buffers to protect natural heritage features. Confirm support for priority of protection of natural heritage features and site alteration. with regard to the accommodation of stormwater management facilities. x. Add to the list for building strong communities: timely delivery of services to meet community needs, including community and recreation centres, schools and libraries. The following matters require further refinement to achieve a balance among different policy interests : c3 Introduce a measure of flexibility to the implementation of MDS policies particularly as they relate to non-residential uses. r3 Define significant cultural heritage landscapes in the same way as built heritage resources to achieve a better balance for heritage resources. c3 Incorporate legislative tools that would allow municipalities to preserve heritage resources (i.e. property owners should not be permitted to demolish heritage designated 2
Agenda Item ## Page # buildings) to achieve a better balance for heritage resources. Planning Reform Initiatives c3 Clarify/Add requirement under 2.2 - Water, or to 2.1.2.5 - Natural Heritage that precludes stormwater management systems from being constructed in natural heritage resource areas unless the ecological function of the lands have been evaluated, and it is demonstrated that there will be no negative impacts on the natural features or on the ecological functions for which the area is identified. Ontario Municipal Board Reform The City of London recommends that the Ontario Municipal Board should show deference to the decisions of municipal council. On that basis the City of London recommends: 6 That the Planning Act be amended to provide that the Ontario Municipal Board must show deference to the decision of municipal Council. d That, with the exception of appeals from incomplete application decisions and no decisions, appeals to the Ontario Municipal Board be limited to the planning issues raised by the applicant at the public participation meeting. That appeals from incomplete application decisions be limited to a determination of whether the municipality s requirements have been met and not deal with substantive matters. c3 That de novo hearings should be limited to appeals from no decision of municipal council. d That the appellant should be required to present evidence first. c3 That the Ontario Municipal Board rules of procedure should be amended to include the requirement of parties to fully disclose evidence prior to a hearing regardless of whether or not there is a pre-hearing conference. d That the decisions of the Ontario Municipal Board be monitored for implementation purposes. BACKGROUND In June 2004, the Province issued three discussion papers on planning reform for consultation: Planning Act Reform and Implementation Tools, Provincial Policy Statement: Draft Policies, and Ontario Municipal Board Reform. These initiatives build upon Bill 26, The Strong Communities (Planning Amendment) Act, which the Province introduced in December 2003 to give municipalities greater planning control to grow smart, protect the public interest and protect the environment. The deadline for comments for the discussion papers is Auqust 31,2004. To date, staff have completed a review of the Strong Communities Act and submitted comments to the province in March 2004, and participated in a Planning Reform Initiatives workshop hosted by the Ministry of Municipal Affairs and Housing on July 6, 2004. 3
PIann i n g Reform Initiatives HIGHLIGHTS OF THE PLANNING REFORM DISCUSSION PAPERS Planning Act Reform and Implementation Tools This paper explores ideas for further changes to The Planning Act beyond what is proposed in Bill 26. Possible new planning tools and ideas for further reform proposed in the discussion paper include: adequate information to support decision making ( complete application ) transfer of development rights, development permit system, setting provincial standards (e.g. minimum densities), and providing support materials (such as implementation guidelines). The issue of monitoring the performance or effectiveness of planning policies is also raised as a potential tool for enhancing the planning system. One key change proposed under Bill 26 is changing the requirement that planning decisions under Section 3(5) of The Planning Act from shall have regard to provincial policy statements to shall be consistent with provincial policy statements. The provincial interpretation of these two different approaches is outlined in the following table: I Current I Proposed 1 1 Shall have regard to 1 Shall be consistent with 1 1 - -- 0 provincial policy statements must be considered as an important factor by decision-makers in land-use planning decisions applies to decision-maker and to process I of making decisions provincial policy statements must be applied in planning decisions. applies to outcome of the decision The proposed wording of consistency elevates the importance of the Provincial Policy Statement in making planning decisions. It should be noted, however, that regardless of the province s intent to strengthen the application of the PPS through the term shall be consistent with, the meaning of the new phrase will most likely be challenged and ultimately determined at the Ontario Municipal Board or through the courts. Draft Provincial Policy Statement The current Provincial Policy Statement (PPS) came into effect in 1996 and was amended in 1997. A five-year review of the Statement was initiated in 2001 as required by The Planning Act. The City participated in the 2001 review and provided comments on the existing PPS, many of which are addressed in the recently issued draft policies. The draft policies would expand the scope of provincial direction and be more directive in approach than the current PPS. A comparison of the current and proposed draft policies is provided in the discussion paper and reproduced below with some additions. Key points under the proposed policies have been highlighted with bold font-these points are dealt with in the Discussion section of the report. I Policy Areas Managing Growth & Promoting Settlement Areas Current PPS Policies Proposed New PPS Policies ( shall have regard to ) ( shall be consistent with proposed by Bill 26) Boundary expansions permitted onto prime agricultural lands, including specialty crop lands, with just if ica t ion General policies for managing and directing growth Intensification, redevelopment and infill of employment, residential and other lands prior to expanding onto greenfields Boundary expansions only at time of comprehensive municipal review Prohibit expansions onto specialty crop land 4
1 Policy Areas Revi ta I izin g Brownfields / Intensification Transit-Supportive Land Use Patterns ~yyyyw yyyliliy.yiyiyujy..yyyy1yu Employment Land: Current PPS Policies ( shall have regard to ) Provide opportunities for in tens ifica t ion and redevelopment in areas with sufficient infrastructure, but not required prior to boundar) expansions Brownfields not specifically recognized Contaminated lands viewed mainly as hazards to human health No targets for intensification/ density Support transit-supportive densities Support multi-modal transportation systems Protect transportation corridors Long-term (20-year) planninc horizon to include sufficient land for industrial, commercial and other uses to promote employment opportunities Well-being of downtowns an( mainstreets to be maintainec No policies on air quality Support energy conservation 0 Encourage housing forms and densities designed to be affordable to moderate and lower income households No targets Plan n in g Reform In it ia t ives Proposed New PPS Policies shall be consistent with proposed by Bill 26) projections for lower-tiers Recognition of linkages to provincial plans Reduce adverse effect between major facilities and sensitive land uses Identify brownfields as opportunities for redevelopment Intensification of existing built-up areas and brownfields development prior to expanding into greenfield areas where possible Upper-tier municipality to set targets for intensification I minimum densities All municipalities to permit I facilitate all forms of intensification / redevelopment Plan infrastructure to support priority growth areas Promote transit-supportive land use patterns including density I intensification targets Direct new development to areas well-served by transit Provide housing /jobs in close proximity to one another Focus travel intensive land uses on transit corridors Link transportation and growth planning Protect strategic future transportation corridors and preclude incompatible uses within them Upper-tiers to set minimum densities for transii corridors Ensure adequate supply of land and opportunities to accommodate rangelmix of industrial, commercial and other employment uses to meet long-term needs Vitality and viability of downtowns and mainstreets to be maintained Maintain diversified economic base and range and choice of employment lands Focused investment through identification of priority growth areas and corresponding coordination / allocation of employment projections Support jobs / housing balance in communitie3 Transit supportive land use patterns Provide housing /jobs in close proximity Focus travel intensive uses on transit corridors Support urban greening Support alternative energy systems and conservation Require municipalities to set minimum targets for the provision of housing which is affordable to low and moderate income households Define affordable 0 Permit and facilitate special needs housing 5
Planning Reform Initiatives Current PPS Policies ( shall have regard to ) No definition of affordable Preserving Greenspace Protect significant natural heritage features Support planning for recreation Protect more significant natural heritage features including coastal wetlands, additional wetlands on Canadian Shield and habitat of endangered and threatened species Support urban greening Support planning for recreation / tourism and natural heritage systems Water Protect quality and quantity 01 ground water and surface water and function of sensitive areas Use watersheds as basis for planning Maintain watershed integrity Protect surface and ground water features, functions and drinking water supplies Identify vulnerable areas Promote conservation and appropriate stormwater management Restrict development and site alteration in sensitive areas 0 Address cross boundary impacts - 1 Protect prime agricultural areas and specialty crop lands while non-agricultural uses permitted when justification provided Strong protection for specialty crop lands including prohibiting growth expansion onto these lands and prohibiting non-agricultural uses 0 Protect prime agricultural areas Strictly limit re-designation of prime agricultural lands to other uses Prohibit residential lot creation on these lands OMB Reform This discussion paper explores the mandate, accountability, member qualification and length of tenure, and public participation process of the Ontario Municipal Board. While Bill 26 provides for more autonomy by municipal councils in dealing with urban boundary matters and longer timeframe for processing planning applications before matters can be referred to the Board, this paper examines opportunities to improve the performance and responsiveness of the Board in dealing with matters of community interests. It should be noted that the province has focused on improvements, not structural changes or alternatives to the Board. k DISCUSSION Bill 26 - Strong Communities Act i) Increased Planning Decision Timelines The extended time frames for the processing of planning applications under Bill 26 are supported; however, a key aspect of an effective application review process and timeline is the availability of adequate information to make a decision on a land use application (see co m p I et e a p p I i ca t i o n be Io w). ii) Appeal Rights for Growth Area Boundary Changes The move towards greater municipal autonomy and accountability for the determination of growth area boundaries and any expansion to them is supported. On the other hand, changes to the Provincial Policy Statement intended to strengthen the integrity of growth 6
P Ian n in g Ref or m I n it iat ives management policies should not eliminate the discretion that a Municipal Council has to respond to emergent opportunities or unique circumstances that may warrant minor growth area expansion outside of a comprehensive five year Official Plan review process. iii) Declaration of Provincial Interest It is accepted that there will be times when it is appropriate for the Province to declare a provincial interest in a matter before the Ontario Municipal Board and reserve its right to make final decisions on these matters. It would be our expectation, however, that such a provincial interest would be declared as early as possible in the planning process and that Provincial staff would actively participate in the process to explain and defend the provincial interest. In other words, a provincial interest should be communicated prior to a decision by municipal Council so that the integrity of the local decision making process is not undermined. In the event that a matter of Provincial interest is being argued before the Board, it is the expectation that the Province will lead the evidence and provide the expertise as it relates to that issue. iv) shall be consistent with Implementation Standard The change to a test of consistency with rather than having regard to the Provincial Policy Statement, together with appropriate changes to the PPS, will ensure that provincial policies and priorities are better understood and appropriately applied. Planning Act Reform and Implementation Tools i) Complete Application The extended time frames for the processing of planning applications under Bill 26 are supported; however, a key aspect of an effective application review process and timeline is the availability of adequate information to make a decision on a land use application. The information currently required for a complete application under that Act is inadequate as it requires only the most basic information. The Act does not allow a municipality to require supportive planning documentation which may be necessary to assess and make a decision on a planning proposal. There should be a clear authority in the Planning Act for a municipality to determine its requirements for the submission of a complete application and to refuse to accept applications for processing that are not complete. The consideration of what constitutes a complete application should be a matter that is guided by policies in a municipality s Official Plan rather than be detailed in legislation or regulation. ii) Transition Provisions for Bill 26 and Effective Date of Policies Under the current Planning Act, applications commenced under the former Planning Act are continued and evaluated as per the old Act. The same transition provisions apply to planning applications where applications are evaluated under the policies in effect on the date of application commence men t. To ensure fairness and balance in assessing and deciding on a planning proposal, the policies in place at the time of application acceptance should be used. It is recommended that transition provisions continue to be enforced through statute and that in-effect compliance dates reflect the dates that Bill 26 comes into force. It is also important that the implementation of the proposed shall be consistent with standard coincide with the approval of a revised Provincial Policy Statement. i i i) Ap p I i ca ti on Ti me I i nes We are in support of the extended timelines to process Official Plan, Zoning By-law, plan of subdivision and condominium applications. In keeping with these proposed amendments, consideration should be given to increase timelines for other planning applications such as site plan and demolition control. 7
P I an n i ng Reform I n it i at ives iv) Site Plan Applications The time frame provided in the Planning Act for the approval of site plan application drawings is inadequate. In keeping with proposed amendments to increase time frames for other planning applications, the approval of drawings for site plan applications should be increased from 30 days to 90 days. v) Demolition Permit Applications The 30 day time frame provided in the Planning Act where the Council refuses or neglects to make a decision on a demolition permit application is typically adhered to by the City of London. There are instances, however, when dealing with issues such as a structure designated under the Ontario Heritage Act or where a structure which is listed on the City s Inventory of Heritage Structures where additional time is required to evaluate the application. In keeping with proposed amendments to increase time frames for other planning applications, the time frame for decisions relating to a demolition permit should be increased from 30 days to 60 days. vi) Limit the appeal period for Council refused Zoning By-law Currently there is not statutory time limit for an applicant to appeal a refusal of a zoning bylaw amendment. This is problematic for both the municipality and the public. First, a municipality is placed in the position of potentially having to defend a refusal before the Board many months or years after the application was made. Also, without a statutory time limit, the public does not have any assurance that the Council decision is the final result, and is left in a state where a change may or may not occur if the applicant chooses to appeal at a future, undetermined date. Decisions should be resolved within a specified time frame to provide all parties involved to operate on the basis of a final decision. The time limit could be consistent with time limit of 20 days for all other appeals under the Planning Act. vii) Acquisition of Roads for lands subject to Site Plan Control The current provisions in the Section 41 of the Planning Act do not allow municipalities to acquire roads located entirely within developments subject to site plan control. Under the current standards the City must purchase the land required for the road from the developer. With larger format commercial land holdings within communities, a condition which would require the land owner to dedicate planned roads, not just widenings within a development subject to site plan control, would be consistent with Section 51 25) (b) of the Act which deals with Plan of Subdivision approvals. vii) Other Changes to the Act Consideration should be given to amending the Planning Act to require preconsultation with the applicant prior to submitting an Official Plan/Zoning By-law amendment and/or application for plan of subdivision, or plan of condominium. Preconsultation would benefit the applicant, municipal staff and the public in that it would clearly spell out the expectations of the applicant in terms of required information (Le. submission of additional studies) and it would provide the applicant and the public with a time line for processing the application. Applicants should also be required to submit a justification report with development applications. There is currently no requirement for applicants to justify their proposal in the same manner as municipal staff is required to when recommendations are made on an application. This clearly puts staff at a disadvantage if an application is appealed to the Ontario Municipal Board. The City does not have the opportunity to address the appellant s justification for a proposed amendment until they are giving evidence at the Board. It also allows an appellant time to bring forward new information which municipal Council did not have the chance to consider. The current review of the Planning Act and any changes recommended to it should have regard for other legislation (Le. the Building Code Act, the Municipal Act, the Ontario Heritage Act, etc.) to ensure consistency. a
Planning Reform Initiatives Provincial Policy Statement: Draft Policies The proposal for changes to the Provincial Policy Statement generally represents an appropriate shift towards improved clarity and guidance for implementation that will make the PPS much easier to apply. I The direction taken to strengthen the integrity of settlement area boundaries is appropriate although there should be clearer understanding of the degree to which intensification, redevelopment and infill must be achieved before a growth area expansion is warranted. While some guidance in the PPS would be helpful in this respect, the criteria and targets that would provide the measure of the policy should be set out in the municipal Official Plan. Having adopted this principle, however, there should be some measure of flexibility for a municipal Council to consider minor adjustments to its growth area. More detailed response to the proposed changes to the PPS relate to issues of clarification and/or definition or areas where further elaboration through the development of supporting guidelines is required. A summary of the issues, as they are presented in the draft document, is listed as follows: Building Strong Communities Section 1. I. 1.4 - Alteration to Boundaries of Settlement Areas Greater priority has been given to strengthening the integrity of settlement area boundaries; however, there should be clearer understanding of the degree to which intensification, redevelopment and infill must be achieved before a growth area expansion is warranted. Guidance in the PPS would be helpful; however, specific criteria and targets that would provide direction for policy implementation should be locally determined and set out in the municipality s Official Plan. The policy should also include flexibility for a municipal Council to consider minor adjustments to its growth area outside of periodic comprehensive Official Plan review processes. Section I.3- Coordination Within and Between Municipalities Clearer direction is required concerning the identification and protection of natural heritage resources which cross municipal boundaries. The policy suggests that a comprehensive, integrated, and long-term approach should be achieved when dealing with land use matters as identified in policy I.3.1. It is recommended that the wording similar to policy I.3.2 be used for consistency which states that the approach to planning will be achieved. The rationale for requiring a comprehensive approach for natural heritage resources relates to a watershedbased approach to resource and ecosystem planning. Section I.4 -Housing The draft policies support the identification of minimum targets for the provision of affordable housing for low and moderate income households. The City of London is in agreement with this policy, provided there are provincial incentives and supports for municipally-based affordable housing programs. It is important to encourage residential intensification; however, it is also important to consider the potential impacts of intensification on the existing community. A policy should be added to Section?.4.4.b) permitting and facilitating all forms of residential intensification and redevelopment provided that the initiative will maintain the stability of the surrounding built-up area. Section 1.5.5 - Transportation Systems The proposed policy that transportation and land use considerations be integrated at all stages of the planning process is supported. However, for the reasons identified in policy 1.I.I.3, above, it is recommended that the policy be modified to add the following: including proposed roads being considered as part of a comprehensive review. This addition would clarify that all stages of the planning process also includes the review process to establish possible roads in designated growth areas. 9
P Ian n in g Reform I n it iat ives Section I.6 - Long-Term Prosperity and Social Well-Being It is recommended that additional criteria be included as support for long-term prosperity and social well-being as set out in Section 1.6. Additional key factors that support a community include the following: i) encourage well designed buildings and spaces that compliment the existing character of the neighbourhood and streetscape. ii) encourage commercial intensification and redevelopment in parts of built-up areas that have sufficient or planned infrastructure to support them. iii) support timely delivery of services to meet community needs, including schools, libraries, recreation, parklands, open space areas and trails. iv) promote design principles for the orderly development of safe and healthy communities. 9 Wise Use and Management of Resources Section 2.1 - Natural Heritage The proposed Natural Heritage policies have been improved with the addition of section 2.1.I which identifies the diversity and connectivity of natural features and the linkages between physical and natural environments, and the addition of section 2.1.2.1 which states that development will generally be directed away from natural heritage features and areas. However, to support the proposed policies, evaluation criteria with guidelines that can be modified to reflect the local context are needed. Standardized monitoring and reporting would be useful to measure the degree to which the policies are being met. The guidelines should also provide clear identification of reasonable buffer and/or setback distances to protect natural heritage features from development. Performance monitoring for environmental impact statements should be mandatory with consequences where predicted outcomes are not being met. The PPS should include incentives to landowners to protect significant heritage resources and to municipalities and other public bodies for the acquisition of these resources to secure their long-term protection and maintenance. We support the revised definition of negative impacts that incorporates the concept of successive or cumulative impacts on water resources. Section 2.2 - Water The section on water quality and quantity has been expanded and improved over the existing PPS. An important aspect of the proposed policy is the clear connection linking surface and ground water features, hydrologic functions and natural heritage features and areas for the integrity of the watershed. However, further clarification is required to determine whether or not the construction of infrastructure, such as a stormwater management facility, is classified under a site alteration activity which would be subject to restrictions if located near sensitive surface and groundwater features. The guidelines requested in the above section would be useful to apply appropriate measures for protection, improvement or restoration of the sensitive feature. Section 2.3 - Agriculture The proposed PPS does not change the requirement for compliance with the minimum distance separation formulae. Some flexibility should be allowed for development lands inside an identified urban growth area, as well as for non-sensitive uses (such as industrial activities) that are currently subject to separation distances. Municipalities should be allowed to exercise some measure of flexibility to reflect local circumstances in these instances. The current MDS policy is rigid in its application which is not consistent with other PPS policies, such as Natural Heritage and buffer setbacks from development as noted above. Revising the policy to read as follows will achieve a balance between protection of prime agricultural lands and economic vitality of urban areas: 10
P I an n i n g Reform I n it i a t ives New land uses, including the creation of lots, will generally be directed away from existing livestock facilities; and new or expanding livestock facilities will not be permitted unless it has been demonstrated that there will be no negative impacts on sensitive land uses. The MDS guideline should be referenced in the implementation support material as a best practice guide/ reference. Section 2.3.4 - Lot Creation and Lot Adjustments It is recommended that reference to the word discouraging lot creation in prime agricultural areas be deleted and should state clearly that lot creation is prohibited with the exception of the reasons listed under 2.3.4.A. The revised clause should be revised to read Lot creation in prime agricultural areas will only be permitted for:... Based on the revised wording, a more clear defined direction will emphasize the importance of protecting prime agricultural land from non-agricultural development. Section 2.6 - Cultural Heritage and Archaeology The proposed policy has been improved to clearly identify what is considered to be significant for both built and cultural heritage resources. For consistency between the two definitions, it is recommended that cultural heritage landscapes be identified through designation under the Ontario Heritage Act, or listed by local, provincial or federal jurisdictions. There is nothing in the PPS that protects an existing heritage building from being demolished, yet a new policy has been added that allows development on adjacent lands where it has been demonstrated through evaluation that the heritage attributes of the designated heritage property will be conserved. An additional policy is necessary to provide clear direction on the protection of existing heritage designated buildings, and to prohibit the demolition of heritage designated buildings. 4 Implementation Further direction and assistance is requested with respect to the development of guidelines and standards from the Province that are intended to guide the implementation of the PPS. For clarity, direction and consistency among decision-makers, it would be useful to include an appendix that lists the current implementation support materials that are available. Ontario Municipal Board Reform London City Council has previously expressed its support for changes that will strengthen the accountability of the decision making process by local elected officials. Changes that will reduce the frequency and scope of appeals and the complexity of hearings by the Board are supported. Specifically, hearings should not be do novo in nature and should be limited to grounds that relate to the fundamental questions of conformity to the Planning Act and municipal Official Plan, and consistency with the Provincial Policy Statement. Greater weight should be given to the decision of the municipal Council with the onus on the appellant to demonstrate that the Planning Act, Provincial Policy Statement or Official Plan have not been appropriately or reasonably applied. Any evidence introduced at the Board should be limited to evidence that was made available to the municipal Council at the time of its decision, thereby protecting the integrity of the local decision making process. Consideration should also be given to the use of a more thorough process of decision review and monitoring by the Board for the purpose of promoting greater consistency in decision making. Continued development of the Board s capacity to sponsor mediation processes should be promoted. Finally, a more rigorous test for screening the relevancy of appeals should be applied with greater discretion given to Board members to dismiss appeals as frivolous, vexatious, or without merit. i) De Novo Hearings Currently the Ontario Municipal Board hears appeals from the decision of a municipal Council on I1
I Planning Reform Initiatives most planning matters on a de novo basis. There is no deference given to the decision of the municipal authority. Typically the municipality is required to present its evidence first. Unless there is a pre-hearing conference, there is no prior disclosure of evidence by the appellant. The municipality s reports and its file are available to and are used by appellants prior to the commencement of the hearing for the purpose of preparing their cases. Although there is a standing requirement that a party to an appeal must have made submissions to Council at the public participation hearing, once the threshold test has been met the appellant may raise any ground and supporting evidence it chooses. Again, generally speaking, if a municipality raises new grounds, opposing counsel will object on the basis that such new grounds were not before Council or there are no instructions from Council to lead the grounds. The City of London does not support de novo hearings. The City of London s position is that the Ontario Municipal Board should show deference to decisions made by municipal council. The City of London s position is that de novo hearings allows a regulatory body to substitute its decision for that of a democratically elected body that makes its decision within a full public participation process. Further, de novo hearings may encourage frivolous and/or unsupportable appeals and add to the length of the hearing. By allowing appellants to introduce evidence that was not before municipal council, the Board is hearing a different application than the application heard by council. In addition, interested participants at a public participation meeting (usually residential neighbours adjoining the developing lands) may believe that what is under appeal at the Board is what they heard at the public meeting. Those residents may not appear at the Board believing the issues to be narrow or straightfowvard. When new evidence is allowed and the application is heard in its entirety, the result from the Board may bear little or no relation to the application debated in public and decided upon by Council. ii) Implementation of the Board s Decisions There is also the issue of implementation of the Board s decision. There have been instances where the Board has made a ruling and the implementation of the ruling results in a form of development that was not before the Board. It may be an inefficient and cumbersome use of resources to expect the Board to monitor its own decisions at the municipal level. Having said that, if the Board does not monitor its own decisions, it is the City of London s position that the Board should carefully craft its decisions so that implementation issues do not arise. This report was prepared with the assistance of: Allister MacLean Heather McNeely Tanya Mitchner Janice Page 1 SUBMITTED BY: July 20, 2004 AM/HMcNTTM/JP Attach. I \\plannerbtrong communities act\consult2-03aug31\planning reform.july 26 PC.doc c. J.Barber, City Solicitor GHopcroft, Director, Intergovernmental and Community Liaison 12