Mar 2023
Unpacking Bill 23: Making Sense of the New Planning and Development Approval Process
How does the introduction of Bill 23 (The More Homes Built Faster Act, 2022), impact the roles of players in the local development process?
By Brooklyn Lester and Slonee Malhotra
What is Bill 23?
On October 25, 2022, the Government of Ontario introduced The More Homes Built Faster Act, 2022 (“the Act”). This is the next phase of Ontario’s Housing Supply Action Plan, targeting the ongoing crisis of home unavailability and unaffordability. The Act received Royal Assent on November 28, 2022.
The Act makes sweeping changes related to land use planning, property tax, building codes, conservation and heritage, and infrastructure financing. The purpose of this Webinar was to review some of these changes as they relate specifically to the evolving roles of municipalities, Conservation Authorities and the Ontario Land Tribunal.
This Article will discuss the key changes that Bill 23 introduces.
Key Change #1: Upper-Tier Municipalities’ Evolving Planning Authority
The Act provides for important changes to the role of planning authorities in Ontario:
Who Does What Now?
|
Permitting for Development
|
| Flooding |
| Erosion |
| Dynamic Beaches |
| Pollution |
| Conservation of Land |
| |
Approval Authority Pre-Act |
Approval Authority Post-Act (Once in Force) |
|
Lower-tier Ops and OPAs requiring approval
E.g., new Ops, secondary plans, conformity exercises
|
Upper-tier |
Ministry of Municipal Affairs and Housing ("MMAH") |
| Subdivisions, consents |
Upper-tier |
Lower-tier |
|
Amendments to former upper-tier OP
(Except new OPS and conformity exercises)
|
Upper-tier |
Lower-tier |
| Lower-tier population and employment forecasts |
Upper-tier |
MMAH? (Unclear at the moment) |
*It is anticipated that the province may be providing more direct guidance going forward for lower-tier municipalities.
Key Change #2: Conservation Authorities Functions in the Development Process
Conservation Authorities in Ontario have two main functions as it relates to development: review of planning applications and permitting for development (without a planning application).
Prior to the implementation of the Act, Conversation Authorities were responsible for the following functions:
| Review of Planning Applications |
| Mandatory: Natural hazards (e.g., flooding, erosion, slope stability) |
| Other services on behalf of municipality: Natural heritage matters (woodlands, wetlands, endangered species, etc.) |
However, the Act significantly changes what services Conversation Authorities are permitted to provide. The criterion for service is now more narrowly focused on natural hazard matters:
| Review of Planning Applications |
| Mandatory: Natural hazards (e.g., flooding, erosion, slope stability) |
Other services on behalf of municipality: Natural heritage matters (woodlands, wetlands, endangered species, etc.)
|
- In green are the services which remain under the scope of the Conversation Authorities under the Act;
- In grey are the services that are to be eliminated from the scope of Conversation Authorities by the Act; and
- In blue are the services that are to be added to the scope of Conservation Authorities by the Act.
| Permitting for Development |
| Flooding |
| Erosion |
| Dynamic Beaches |
| Pollution |
| Conservation of Land |
| Unstable Soil |
| Bedrock |
| Health or safety of persons / property |
As you will see the Act prohibits these Conservation Authorities from providing the optional services they used to. Municipalities will be required to undertake these assessments themselves.
Note: These provisions are not yet generally in force. However, as an exception, in Ministerial Zoning Order Areas, they are in force.
Further, the Act introduces exemptions from permit requirements for development approved under the Planning Act:
- Prohibition on development activities in areas within conservation authority jurisdiction (hazard lands, wetlands, river or stream valleys, close to lakes) do not apply if:
- The activity is part of development authorized under the Planning Act and,
- Conditions in regulations are satisfied
- Exemption may not apply to all activities approved under the Planning Act:
- Regulation may prescribe activities, areas of municipalities or types of authorizations under the Planning Act that are exempt from permit requirements
- Regulations not yet available and provisions not yet in force.
It is not yet clear whether this change could provide a blanket exception from a Conversation Authority permit. The regulations may specify what specifically is exempt—until the regulations are available the provisions will not be in force.
Key Change #3: The Ontario Land Tribunal Appeal ("OLT") Process
Parkland Matters
Prior to the Act,
- Municipalities generally had authority to insist on fee simple parkland dedication, and
- Nature of interest to be conveyed as parkland not generally subject to appeal to the OLT.
With the changes in the Act,
- Any time prior to the building permit, landowners may propose to dedicate encumbered parkland or interest other than the fee,
- Strata parcels
- Surface easement
- Lands subject to an easement or encumbered with below-grade infrastructure
- If municipality refuses to accept, may appeal to OLT;
- Basis of OLT decision: whether the proposed conveyance meets criterion in regulation; and
- Regulations not yet available and provisions not yet in force.
Planning Instruments
- OLT still available to third parties for: OPAs and zoning by-law amendments (”ZBAs”), including municipally- initiated;
- OLT not available to third parties for: Variance and consent applications:
- Appeals only permitted by applicants and certain specified entities
- These provisions are in force; and
- Conservation authorities can only appeal or seek party status in relation to natural hazard matters under provincial policy.
Conclusion
Industry members will be required to adapt to the changes implemented by the Act. Notable changes include the roles of different actors in the development process. Specifically, a shift in power from upper-tier municipalities to lower-tier municipalities in the coordination and approval of developments will bring growing pains in regional coordination and responsibilities. The role and influence of Conversation Authorities is somewhat restricted in the changes brought about by the Act, which reduces the Authorities mandate to comment on matters that are not otherwise related to natural hazards. As well, the Ontario Land Tribunal will not longer be permitted to hear third-party appeals of certain applications. This means that neighbouring individuals have a reduced ability to play a role in these types of decisions.
However, the full extent and impacts of these various changes are not yet understood, as an upcoming phase of public consultation and regulation drafting may provide further amendments and clarity.