Municipal, Land Use, and Development Law – David Sunday
As part of its consultations on the development of a new Provincial Policy Statement (“PPS”), Ontario’s Ministry of Municipal Affairs and Housing recently made available draft PPS policies (http://www.mah.gov.on.ca/Page9990.aspx) and invited stakeholder comments:
The PPS is intended to provide “policy direction on matters of provincial interest related to land use planning and development”. It has legal weight by virtue of a provision within the Planning Act that requires all decisions of land use planning authorities to be consistent with the PPS. To see what’s new in the draft PPS, I created a comparison of the draft policies to the existing PPS 2005 which you can view here:
If you look at the comparison, you’ll see right away that what’s proposed is not a complete rewrite, but rather a revision to what’s already there in the PPS. That said, there are some fairly significant proposed changes. Some of the more interesting changes relate to the “greening” of development.
A very obvious “green” addition in the draft PPS policies is the introduction of the new term Green infrastructure:
Green infrastructure: means natural and human-made elements that provide ecological and hydrological benefits. Green infrastructure can include components such as natural heritage features and systems, parklands, storm water management systems, urban forests, permeable surfaces, and green roofs.
Green infrastructure appears to require a new and different understanding of what we currently think of as infrastructure, another defined term in the PPS. Unlike infrastructure, green infrastructure is not limited to just “facilities and corridors”, but may include any “element” that provides “ecological and hydrological benefits”.
The only draft PPS policy dealing with green infrastructure is section 1.6.2. This section requires planning authorities to encourage the use of green infrastructure to augment infrastructure and for other associated ecological and hydrological benefits before consideration is given to developing new infrastructure and public service facilities.
It’s notable that the definition of green infrastructure contains no reference to infrastructure itself, which suggests that green infrastructure is not intended to be just a subset of infrastructure. Rather green infrastructure seems intended to be something that stands beside infrastructure, figuratively speaking, and somehow lessens the load that conventional infrastructure would otherwise have to bear.
The draft policies provide some examples of green infrastructure but the definition is clearly non-exhaustive. If implemented, it will be interesting to see what comes to be generally recognized as green infrastructure and what types of policies municipalities develop to encourage the use of it.
“Resilient” is a word that does not appear at all in the existing PPS, but appears six times in the draft PPS. The word is not specifically defined in the draft PPS, so I assume the conventional meaning is intended, i.e., being able to withstand or recover from some adverse condition.
- “Resilient” is used in the draft PPS primarily to modify the words “communities” and “development”, as in:
- “sustainable and resilient communities”
- “resilient development and land use patterns”
- “efficient and resilient communities”
- “liveable and resilient communities”
Of course the question this raises is: What is it that communities and development are to be resilient against?
Part IV: Vision for Ontario’s Land Use Planning System of the draft PPS appears to answer the question with this statement:
Strong, liveable and healthy communities promote and enhance human health and social well-being, are economically and environmentally sound, and are resilient to climate change.
If adopted in their current form, the draft PPS policies would make climate change resiliency an indicator of good land use planning and a characteristic good development. As with green infrastructure, it will be interesting to see what would become generally recognized as “resilient communities” and “resilient development” and also what yardsticks will be developed to measure resilience.
Another new defined term in the draft PPS is active transportation:
Active transportation: means human-powered travel, including but not limited to, walking, cycling, inline skating and travel with the use of mobility aids, including motorised wheelchairs and other power-assisted devices moving at a comparable speed.
The general policy direction in the draft PPS is to promote and increase the use of active transportation, but there is no specific direction to set targets or otherwise set benchmarks for how this is to be done.
The addition of the term would not appear to present a marked policy shift, so much as an effort to clarify of what was intended by a mishmash of terminology in the existing PPS, such as “alternative transportation modes”, “pedestrian mobility and other forms of travel”, “other alternative transportation”, and “pedestrian and non motorized movement”.
If you are interested in further reading on the draft PPS policies, many commenting agencies have posted their comments online including submissions from:
- Ontario Home Builders Association (http://ohba.ca/publications/303/hits)
- Ontario Professional Planners Institute (http://ontarioplanners.ca/getattachment/d6651f17-78e5-4e4d-9957-74e79094ea94/Provincial-Policy-Statement-Five-Year-Review-Publi.aspx)
- Ontario Farmland Trust
- Canadian Environmental Law Association and Ecojustice Canada (http://www.cela.ca/sites/cela.ca/files/877SubmissionPPSreview.pdf)
* * This article is intended only to inform or educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.
Author: David Sunday is the Group Leader in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. David may be reached at (519) 741-8010 or<email@example.com>.