Bill 139 – Building Better Communities and Conserving Watersheds Act, 2017 took effect on April 3, 2018 bringing in the new Local Planning Appeal Tribunal (LPAT) to replace the former Ontario Municipal Board (OMB). In June 2016, the provincial government assessed the OMB’s scope and effectiveness in protecting the public’s interest concerning development proposal appeals. In doing so, local communities urged that having an independent appeal tribunal will be more efficient and effective by solving land use disputes on their own. As a result, Bill 139 gives elected officials greater control during the decision-making process in contrary to the former OMB.

The OMB was Ontario’s first independent quasi-judicial administrative tribunal that conducted hearings and made decisions on land use planning issues and other matters. The OMB would hear arguments from both sides and make decisions based on what it believed to be the “best” planning outcome for the community. The board held de novo (from the beginning) hearings as though it was considering the development proposal for the first time with the power to supersede prior decisions made by local councils.

The intent of an evidence-based strategy was to allow for decisions to conform to official planning policies while leaving politics out of the process. However, LPAT has shifted the weight of approving development proposals to elected municipal council members. For the councillors the pressures of having to secure re-election introduces a gap between providing the greater community with the long-term outlook and housing mix that is needed against the interest of selective vocal constituents.

Under the new LPAT system, the tribunal will permit developers to appeal a proposal when the municipality fails to follow its planning process and land use plans (such as the Provincial policy statement, Provincial plans or Official plans). If the appeal is successful, the issue will be sent back to municipal councils to consider another decision. Unlike the former OMB, the tribunal is only authorized to implement a planning decision where, on a second appeal, the municipal decision is inconsistent or nonconforming to regional policies and municipal plans.

Bill 139 also limits the scope of decisions that can be appealed to the LPAT. Provincial approvals of official plans and official plan updates including approvals of conformity exercises to provincial plans and minister’s zoning orders are no longer appealable. In addition, new secondary plans are under two-year moratoriums, and one year for interim control by-laws once it first passes, unless permitted by municipal council. Furthermore, any appeals involving transit-oriented development will undergo a restrictive process. The course of submitting a proposal will require both developers and community members to undergo extensive preliminary planning leading to a lengthier development process.

The intent of the new legislative act is to provide a faster, fairer and a more affordable planning appeal process for all participants. But if it is meant to help make housing more affordable and provide diverse housing options, this plan is unlikely to succeed. Placing greater weight on the decisions of local councillors demands extensive due diligence in the predevelopment stage that could lead to regulatory uncertainty and costly extended application timelines for developers. Consequently, this causes an upward pressure on housing prices to be inflationary to consumers. A community’s need for diverse housing supply and its affordability will be hindered once the process becomes drawn out without reasonable methods to settle an appeal. The decisions by local councillors can be misaligned with the long term planning goals of the community. LPAT’s intent to provide a fast, fair and more affordable planning appeal process may very well be at the cost of housing affordability for future homebuyers.