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May 2023

What Bill 97, Helping Homebuyers, Protecting Tenants Act, 2023 Might Mean for Developers

By Slonee Malhotra and Nathan Henderson

Ontario has announced new policy and legislative changes that are intended to address housing supply and affordability. On April 6, 2023, the provincial government issued a proposed Provincial Planning Statement (the “PPS 2023”), which, if passed, would supplant both the Provincial Planning Statement 2020 and the A Place to Grow: Growth Plan for the Greater Golden Horseshoe (the “Growth Plan”). It also introduced Bill 97, the Helping Homebuyers, Protecting Tenants Act, 2023. Comments on the PPS 2023 can be submitted through the Environmental Registry of Ontario until June 5, 2023.

The PPS 2023 groups proposed land use planning policies under five pillars:

  1. Generate an appropriate housing supply
  2. Make land available for development
  3. Provide infrastructure to support development
  4. Balance housing with resources
  5. Implementation

The proposed changes follow the More Homes Built Faster Act, and are intended to further the provincial government’s goal of constructing 1.5 million homes by 2031. Bill 97 will be subject to further readings by the legislature, as well as potential committee review, and may be amended through that process.

Amendments to the Planning Act

Osler, Hoskin & Harcourt LLP has prepared an unofficial blackline of the proposed amendments to the Planning Act, which can be found here.

Employment Areas

Section 1(1) of the Planning Act would be amended to include a new definition of “area of employment”. This amendment excludes “institutional uses” and “commercial uses” from possible business and economic uses, provided such uses are not otherwise related to manufacturing uses, uses related to research and development in connection with manufacturing, and warehousing uses. A new subsection 1(1.1) would also be added, providing that an area of employment with institutional or non-associated commercial uses would still be deemed an “area of employment”, provided that:

  1. the lands in question are subject to official plan policies authorizing the continuation of the use; and
  2. the use was lawfully established on the land before the day the modified “area of employment” definition came into force.

Ministerial Powers

The Minister would be granted new powers under the proposed amendments to the Planning Act, specifically:

  • Under section 3(6.1), the Minister would be granted the power to “make regulations providing for transitional matters which, in the opinion of the Minister, are necessary or desirable to facilitate the implementation” of the proposed PPS 2023.
  • Under section 47(4.01), the Minister would have the power to order that lands subject to a Minister’s Zoning Order (an “MZO”) do not need to comply with provincial or municipal policy to obtain other land use planning approvals.
  • Under section 49.2, when a Provincial Land and Development Facilitator is appointed by the Minister to advise, make recommendations, or perform any other functions with respect to land, the Minister may order landowners to enter into agreements with the municipalities or the Minister to address any matters that the Minister considers necessary for the appropriate development of the land. The Minister can require a landowner to pay for or provide contributions that are higher that what is required in the Planning Act or other legislation. Per section 49.2(3), this section will act as a condition of development, as landowners can only use land for existing uses until they enter into all required agreements.

“Prescribed Areas” for Development

Section 41 is proposed to be amended to limit the definition of “development” to the construction, erection, or placing of a building or structure for residential purposes on a parcel of land with more than 10 residential units, unless the parcel of land includes any land in a prescribed area.

The only current indication of what could be a “prescribed area” is in a proposed regulation, which would permit the use of site plan for parcels of land:

  • Any part of which is located within 120 metres of a shoreline; and
  • Any part of which is located within 300 metres of a railway line.

Parking

Sections 16(3.1) and 35.1(1.1) would be amended to clarify that an official plan or zoning by-law may not require the provision of more than one parking sport for each residential unit, other than with respect to the primary residential unit.

“Parcel of Land”

Sections 17(24.1)(c), 17(36.1), 22(7.2)(c)(iii), and 34(19.1)(c) would be amended to limit rights of appeal to official plan policies and zoning by-laws that authorize the use of one residential unit in a building or structure ancillary to a detached house, semi-detached house, or rowhouse on a “parcel of land”, as opposed to on a “parcel of urban residential land”.

Planning Application Fee Refunds

Section 34(10.12), (10.13), and (10.14) would provide that the effective date for planning application fee refunds will be July 1, 2023. Municipalities are required to provide application fee refunds for any applications received on or after July 1, 2023 that are not processed within the statutory timeframes from the date of receipt.

Appeal of Interim Control By-Laws

Section 38(4) would be amended to allow appeals of an Interim Control By-Law by persons or public bodies who were given notice of its passing. Appeals can be filed within 50 days after the date of the passing of the by-law or the extension of the initial by-law.

What Does This Mean for Development

The PPS 2023, if implemented, would eliminate the Growth Plan entirely. This would eliminate the requirement that every hectare of farmland or wildlife habitat developed for residential use must house at least 50 residents and jobs, and other minimum density requirements.

Additionally, on April 11, the Regional Municipality of Waterloo Official Plan was amended by Official Plan Amendment 6. The decision overrides the decisions of elected councils and their planners and opens over 2200 hectares of undeveloped lands for new homes and business in the Region of Waterloo. All of the lands within the countryside line can now be developed for new housing or business.

Every municipality in the Waterloo Region is surrounded by an “urban boundary”, or a “countryside line”. In order to curb urban sprawl and preserve farmland, no development is permitted beyond the countryside line. Amendment 6 appears to have moved the borders of this line and opened for development land that had previously been protected, agricultural, or rural.