IN THE KNOW:
Bill 139 

Appeal Rights: TOcore and Midtown in Focus

In Toronto, the Downtown (OPA 406) and Yonge-Eglington (OPA 405) Secondary Plans are an interesting study in the potential implications of changes brought to the planning system by Bill 139.

Official Plan Amendments like these are common for municipalities in Ontario to introduce supplemental planning direction, clarifying and refining land use, design or environmental objectives in key city districts. The City of Toronto has done so numerous times in recent years. Amendments like OPA 231 introduced new land use and employment land policies applicable within the city’s employment districts; OPA 320 sought to clarify and strengthen policies applicable to Neighbourhood and Apartment Neighbourhoods; and OPA 249 introduced a new secondary plan for the North York Centre area.

Often, the approval of an amendment to the Official Plan will see appeals seeking to further clarify and refine particular policies of newly approved plans at the behest of development interests and residents alike. The approval of each of the above noted OPAs saw appeals to the Ontario Municipal Board. Bill 139 now changes the pathway to any appeal of a City initiated Official Plan Amendment where the municipality invokes an approval of an Official Plan under section 26 of the Planning Act.

This is what the City of Toronto has done in the approvals of OPA 405 and 406, approving these plans pursuant to Section 26, rather than the more common, Section 17 of the Planning Act.

Official Plans approved under Section 26 of the Planning Act are designed to demonstrate conformity with provincial policy and refer the final approval of an amendment to the Minister of Municipal Affairs.

Under the Building Better Communities and Conserving Watersheds Act, 2017, an appeal of an Official Plan may only be made on the basis that the policy is inconsistent with provincial policy, and by extension, there can be no appeals in matters where the Minister of Municipal Affairs is the approval authority of an Official Plan Amendment.

By approving these Secondary Plans under Section 26 of the Planning Act, no appeals may potentially be heard to either plan if they receive the Minister’s Approval. However, it remains to be seen how the Province will choose to implement Section 26 approvals.

Currently, these plans are under provincial review. If the plans receive the Minister’s approval and any attempts at an appeal of the final decision fail to gain standing before the Local Planning Appeals Tribunal, this may open a new mechanism for the approval of municipal OPAs across the Province. It remains to be seen whether or not this new mechanism would remove the ability for appeal of municipal OPAs. This is a matter to watch closely with implications in municipalities across Ontario.

A 90-day public consultation and review of both plans commenced on August 31, 2018 and the Ministry is open to comments. Comments will be received up to November 29, 2018.