2012: Across Ontario, there have been two complementary trends in planning and development law. First, a greater engagement of the public in matters of development, most often concerned about development, including greater height and density in existing neighbourhoods; and second, municipalities, concerned about the first trend, seeking to preclude debate on such matters by placing strict regulation of development and prohibition of uses in Official Plans. This article, previously published in The Digest of Municipal and Planning Law ((2011) 5 D.M.P.L. (2d), August 2011, Issue 8), argues that notwithstanding the prevalence of such a trend, such measures are beyond the legal authority of municipalities, and offers a path to challenge such measures.
An official plan is a useful and necessary tool used by municipalities to plan for their future development and growth. However, as currently used, many, if not most official plans across Ontario contain elements that are not consistent with the law, either in the form of decided case law, or on a plain reading of the Planning Act.
Many official plans across Ontario attempt to rigidly prescribe performance standards, prohibit certain kinds of uses, or otherwise attempt to specifically regulate use or building form. The practice appears to be a reaction to the continuing clash between a more activist population and the development industry. One planner justified the use of official plans in this way to the author on the grounds of attempting to control the requests for relief by the development industry. Regardless of the reason for or breadth of such a practice, it is not in compliance with the statute and the case law, neither of which allow such content in an official plan. As such, the attempted use of such regulation or prohibition may well be “a bridge too far”.
There is a wealth of jurisprudence which suggests that official plans are intended to be broad and flexible policy statements that should and do not have the effect of a statute. Official plans are not intended to be used to prohibit or regulate specific land uses in detail. Rather, these should be implemented through zoning by-laws. Despite this consensus in the current jurisprudence, municipalities appear to more and more be using official plans in a manner not intended or indeed permitted. Indeed, in the face of rancorous public debate over development issues, more and more municipal staff and councils are proposing the use of official plans to prohibit specific uses, or regulate performance standards in a manner approaching the methods of a zoning by-law.
The jurisprudence also suggests that since official plans are intended to be broad and flexible policy documents with an eye towards long-term planning, they should avoid being too detailed or specific to allow for municipal development to freely evolve without the constant need for official plan amendments. The Ontario Municipal Board (the “Board”) has approved detailed site-specific amendments to official plans to allow for changes in development in the past, but has voiced its concerns regarding this planning practice.
Finally, there is case law which suggests that when power or authority is explicitly granted in one instance in a statute, the lack of the same expressly granted power in another instance will usually be construed as though the legislature did not intend for the body to have the power in the latter instance, by virtue of the expressio unius est exclusio alterius or implied exclusion rule. In this context, the fact that municipalities are expressly given the power to pass zoning by-laws under s. 34 of the Planning Act which are intended to “regulate” or “prohibit” suggests that municipalities were not intended to “regulate” or “prohibit” within an official plan because under s. 16 of the Planning Act, municipalities are not expressly given the power to “regulate” or “prohibit”.2 It is the authors’ view that it is likely that the implied exclusion rule would be applied in this context.
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