Canada: Planning Statute Law Amendment Act, 2023: Out With The New And In With The Old

On November 16, 2023, the Ontario government introduced yet another piece of legislation aimed at land use planning: Bill 150, the Planning Statute Law Amendment Act, 2023 (Bill 150).

If passed, Bill 150 would enact the Official Plan Adjustments Act, 2023 (OPAA) to retroactively reverse its own changes made in November 2022 and April 2023 to official plans from 12 municipalities: the cities of Barrie, Belleville, Guelph, Hamilton, Ottawa, Peterborough, Wellington County and the regional municipalities of Halton, Niagara, Peel, Waterloo and York. The proposed reversals would not apply to circumstances where construction projects have already received building permits or where doing so would contravene existing provincial legislation and regulations or for public health and safety.

Seeking input

The Backgrounder sets out that the affected municipalities have until December 7, 2023 to make submissions respecting circumstances or projects that are already underway and on any changes that the municipality would like to see made to the official plan, based on the original modifications.

The Environmental Registry of Ontario (ERO) however, provides a commenting period until December 16, 2023 and does not limit submissions to affected municipalities. The ERO indicates that the Province is seeking input on both the legislation and the potential implementation considerations associated with matters arising from the reversal of the official plan decisions.

Impact of the OPAA

The OPAA proposes to do three things:

1. Reverse specific provincial decisions under subsection 17(34) of the Planning Act

Decisions made to official plans or amendments to official plans set out in Schedule 1, Column 1 are reversed and deemed to have never been made, except for the modifications listed in Column 3.

These proposed changes reflect the statements made by the Minister of Municipal Affairs and Housing on October 23, that the Province would reverse certain decisions related to official plans and official plan amendments because the Province did not have confidence in the decisions made.

The Backgrounder provides the following reasoning for keeping the modifications listed in Column 3:

• Conflicts with Greenbelt policies

This affects the Cities of Hamilton and Belleville and the Regions of York, Niagara and Peel and the County of Wellington.

The provincial changes retained include: policies where elements of a municipally-adopted official plan would have been in conflict with Greenbelt policies. For example, an urban boundary may encroach into the Greenbelt, or an official plan might permit the extraction of sand or gravel, or a waste disposal site in a particular area, when in fact it is part of the Greenbelt and these activities are prohibited under the Greenbelt Plan.

• Strengthening Indigenous relations

This affects the Cities of Hamilton and Belleville and the County of Wellington.

The provincial changes retained include: where a marked or unmarked cemetery or burial place is found, the Indigenous community(ies) within the known interest area are notified in an effort to ensure that planning approval authorities continue to coordinate and engage with Indigenous communities with Aboriginal and treaty rights regarding cultural heritage and archaeological resources.

• Sharing built-up areas – compatible land uses

This affects the Cities of Hamilton and Peterborough and the Regions of York and Niagara.

The provincial changes retained include: policies that acknowledge sensitive land uses, such as homes, long-term care facilities and industrial lands or sewage treatments facilities and where their development in proximity to one another continues to be respected. The policies retained in this category are so that negative impacts such as odour, noise and other contaminants are avoided.

• Safe drinking water

This affects the Regions of Peel and York and the Cities of Barrie, Belleville and Peterborough.

The provincial changes retained include: policies that ensure that provincial rules that prohibit certain land uses and activities surrounding drinking water sources are reflected.

• Preparing for Highway 413

This affects the Regions of Halton and Peel.

The provincial changes retained include: policies that allow for the protection of the Highway 413 corridor, so as to ensure that appropriate considerations are made, given the years of planning involved in such a major infrastructure project.

In addition, a number of additional modifications are identified for the Region of York, City of Guelph and County of Wellington, to address policies specific to those municipalities.

2. Transition Rules

The proposed OPAA sets out transitional rules to clarify the effect of the retroactive approval on particular actions. Generally speaking, these rules would provide that in-process applications would continue to be processed, but must conform to the municipality's Official Plan as retroactively changed in accordance with the OPAA.

This includes, for example, decisions of a municipality or the Ontario Land Tribunal made under the Planning Act and any by-law passed or public work undertaken by a municipality, on or after the deemed date of approval under the OPAA. Where a building permit has been received, construction could continue regardless of the OPAA changes.

3. Immunity Provisions

The OPAA proposes to introduce immunity provisions that limit causes of action arising as a direct or indirect result of the these changes. Through the below immunity provisions, the Province sets a framework to prohibit cost recovery from any person that may have spent money as a result of Official Plan approvals that were reversed.

Specifically, the OPAA prohibits remedies sought against "any person in connection with anything referred to in subsection [4](1)" of the OPAA:

4 (1) No cause of action arises as a direct or indirect result of,

1. the enactment of this Act or the amendment or repeal of any provision of this Act, including the rescission of any decision under subsection 17 (34) of the Planning Act or the approval of any official plan or amendment to an official plan that results from the application of this Act;
2. the making of any decisions under subsection 17 (34) of the Planning Act that are referred to in subsection 1 (1);
3. anything done or not done in accordance with this Act or any decision under subsection 17 (34) of the Planning Act referred to in subsection 1 (1); or
4. any representation or other conduct by current or former employees, officers or agents of the Crown in right of Ontario or current or former members of the Executive Council that is related, directly or indirectly, to,
5. 1. the actual or potential making of any decision under subsection 17 (34) of the Planning Act that is referred to in subsection 1 (1),
   2. the actual or potential acquisition, disposal, use or development of any land subject to any decision under subsection 17 (34) of the Planning Act that is referred to in subsection 1 (1), or
   3. the actual or potential granting or issuance of any approval, permit, order, by-law or other instrument in respect of any land subject to a decision under subsection 17 (34) of the Planning Act that is referred to in subsection 1 (1).

The particularized proposed immunity provisions are intended to mitigate legal risk for municipalities and the province resulting from this legislation. The legislation would also amend the Planning Act to introduce immunity provisions related to the making, amending or revoking of minister's zoning orders.

Dentons will continue to review the legislation and any related policy updates as they unfold and provide updates on any relevant developments. In the meantime, should you have any questions about the proposed Planning Statute Law Amendment Act or its impacts, or should you require assistance in providing comments to the Ministry on its consultation in respect of the proposed legislation, please contact Katarzyna Sliwa or any member of the Dentons Municipal, Land Use Planning and Development team.

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