Ontario Municipal Board reform: promising, but no panacea

John Cockburn

As a wind of change blows through the thorny field of municipal planning, Heritage Ottawa recently hosted a panel discussion about changes to the Ontario Municipal Board (OMB) appeal process. A number of Sandy Hill residents turned out to hear about the Local Planning Appeal Tribunal Act (LPAT), which came into force on April 3, and related amendments to the Planning Act.

Attorney General Yasir Naqvi spoke about changes the Act (heretofore known as Bill 139) brings to planning processes across Ontario. Other speakers were Ottawa lawyer Marc Denhez, who provided historical context to the change in legislation, and Jay Baltz of the Ottawa Built Heritage Advisory Committee, who outlined some likely impacts.

Attorney General Naqvi noted four main features of the Bill, the purpose of which is to bring predictability and certainty to the planning process.

LPAT restricts the scope of issues that can be appealed to the authority known as the Tribunal that is successor to the OMB. In particular, municipal official plans that have been certified by the Ministry of Housing are not subject to appeal to the Tribunal.

Secondly, instead of ruling on what is the best planning decision, the new legal test is whether or not a municipal decision is consistent with existing planning documents. If not consistent, the issue is returned to the municipal council for resolution—rather than a resolution being imposed by the Tribunal.

Thirdly, in an attempt to simplify the hearing process, LPAT endorses a less formal mediation option over full-scale hearings. This together with the new legal test could reduce the role of experts—the engineers, planners and heritage consultants. LPAT panel members will focus on process rather than the substantive merits of a case.

Finally, a Local Planning Appeal Support Centre is established by the legislation. Its mandate is to provide information and advice to intervenors on matters coming before the Tribunal. It will be a source of expertise on land use planning, guidance on Tribunal procedures and advice or representation.

The Minister admitted that the proof of success will come only with implementation but that the objectives were clear: make the process simpler and more accountable to local decision-makers by forcing municipalities to make good plans, rather than have the Province settle controversial matters.

Ottawa lawyer Marc Denhez, who has served on both the OMB and the Conservation Review Board, prepared the audience for Naqvi’s presentation by providing some historical context. He noted that planning can only be as good as the criteria on which it is based. The OMB’s criteria have often been ill-defined, including vague references to “highest best use” and (since 1996) to “intensification.” Many have contested such criteria on the grounds that they do not recognize the value of sustainability or aesthetics. So the OMB appeal process, according to Denhez, often served as the starting point for negotiations that escalated allowable building limits and enhanced profitability.

Denhez is guardedly hopeful about the new regime. The Act, he says, recognizes the primacy of criteria defined at the municipal level and is supported by a wide community of affected interests. No longer will the emphasis be on negotiating “upzoning” (zoning changes that enable more housing construction) and interpreting “highest best use.” These are positive first steps, but he warns that the process must be accompanied by vigilant community involvement, engaged for the long run.

Jay Baltz, a former board member of Heritage Ottawa and Chair of the Ottawa Built Heritage Advisory Committee, spoke about his experience in dealing with the OMB as a community activist, and how the new regime may remedy some long standing problems, in particular unequal access and planning uncertainty.

While in theory, everyone has had equal access to the OMB, cost and lack of expertise often put appeals out of reach. To regular community members, the OMB seemed to operate like a court: detailed cases had to be prepared in advance and often required expensive experts (lawyers, engineers and planners) to prepare and provide evidence. Often, the planning process and OMB hearings seemed biased towards the interests of developers, and there seemed to be close personal ties between the expert, developer and planning communities.

Baltz also noted that the process took a lot of time, many zoning bylaws were out of date, provincial policy statements were often unclear and driven by politics, parts of the legislation (e.g., Section 37) encouraged upzoning plays by developers and planners, and often the proceedings at OMB were a redo or undo of processes that had occurred at the municipal level.

A short Q and A session revealed that heritage advocates do not see much in the new legislation that addresses their main concerns for cultural preservation; they would have also welcomed progressive changes to the Heritage Act.

The bottom line in all three excellent presentations was that those of you who feel all will be well under this new provincial legislation need to think again. As the process falls into place under LPAT, planning decisions that respect heritage, sustainability and aesthetic values will only happen if those who prioritize them stay involved.