Introducing Bill 185, the Cutting Red Tape to Build More Homes Act, and an Update on the New Provincial Planning Statement

Introducing Bill 185, the Cutting Red Tape to Build More Homes Act, and an Update on the New Provincial Planning Statement

On April 10, 2024, Ontario’s provincial government (the “Province”) introduced new legislation in its quest to “cut red tape”, speed up government processes, and meet its goal of building 1.5 million homes by 2031.[1] Bill 185: the Cutting Red Tape to Build More Homes Act (“Bill 185”), introduces a number of changes to 15 statutes, including key land-use planning legislation. These legislative changes are largely in response to stakeholder feedback on issues preventing or delaying the development of housing, including feedback on changes brought forward under Bill 23: the More Homes Built Faster Act (“Bill 23”).

The Province’s press release for Bill 185 is available here, and the Environmental Registry of Ontario (“ERO”) posting for Bill 185 can be found here. Of note, there are several related ERO postings respecting:

• Proposed regulatory changes relating to Bill 185,
• Proposed Planning Act, City of Toronto Act, and Municipal Act changes under Bill 185, and
• Proposed changes to regulations under the Planning Act and Development Charges Act.

Each ERO posting will remain open for public consultation until 11:59pm on May 10, 2024.

Bill 185: A Summary of Key Changes from a Development and Land-Use Planning Perspective

The omnibus Bill 185 proposes amendments to 15 pieces of legislation, including the Planning Act, Municipal Act, City of Toronto Act and Development Charges Act, with most of the changes intended to come into force and effect upon Bill 185 receiving Royal Assent. These changes include:

• Expanded “Use it or lose it” Powers: Bill 185 proposes to expand upon municipalities’ ability to stipulate “use it or lose it” requirements for land use approvals. Specification of a lapse date will become mandatory for draft plan of subdivision approvals (instead of simply an option for municipalities as is currently the case), with approvals given before March 27, 1995 being subject to lapsing within 3 years from the effective date of these changes.[2] For site plan approvals, a municipality will be empowered to provide for lapsing of any approval at the expiration of the prescribed period of time applicable to the development or three years (if no such time period is prescribed).[3] Notably, a municipality may provide for lapsing of previous approvals, subject to notice to the owner of the land.[4]
• Development Charges (“DCs”): Bill 185 proposes to amend the Development Charges Act by providing that DCs for certain eligible applications will only be frozen for 18 months from the date the relevant application for determining rates is approved (instead of the originally prescribed 2 years). Failure to obtain a first building permit within 18 months of the approval of the relevant application will result in losing the “frozen” rates, as will allowing more than 18 months to pass from such approval and the date DCs becoming payable under the Development Charges Act.[5] Additionally, Bill 185 proposes to repeal the phasing of DCs. Currently, municipalities are required to include a phasing consideration in their determination of DCs, and there is also a provision which requires phasing of DCs imposed under a DC by-law passed between January 1, 2022 and November 28, 2022 (when Bill 23 received Royal Assent). Bill 185 is proposing to remove the rule requiring municipalities to include a phasing consideration generally,[6] but by way of transition, proposes to extend the requirement for phasing of DCs imposed under a by-law passed prior to the date Bill 185 receives Royal Assent.[7] DCs imposed under a by-law passed after Bill 185 comes into force will no longer be subject to the phasing requirements.
• Further Limiting of Third-Party Appeal Rights: While Bill 23 limited certain third-party appeal rights relating to minor variance and consent decisions, Bill 185 proposes to go even further by limiting third-party appeal rights related to official plan amendments (“OPAs“) and zoning by-law amendments (“ZBAs”) to only the applicant, the Minister, the approval authority, a public body, and “specified persons” who have made oral or written submissions prior to adoption of an OPA or ZBA. “Specified persons” are defined in the Planning Act and is made up of a limited list of entities, mainly consisting of impacted utility providers, such as Hydro One Inc., or a telecommunication infrastructure provider. These changes to third-party appeal rights would have retroactive effect, meaning a third-party appeal by a person who is not the applicant, Minister, approval authority, a public body or a “specified person” would lose their appeal right even if notice of the appeal has been provided, unless a hearing on the merits of such appeal has been scheduled before April 10, 2024.[8]
• Regulations re: Provincial Interests: Amendments to the City of Toronto Act[9] and Municipal Act[10] would allow the Province to make regulations authorizing municipalities to grant assistance to a specified manufacturing, industrial or commercial enterprise if the Province considers it necessary or desirable in the provincial interests to attract investment in Ontario. Within the regulations, the Province may set out the types of assistance that may be granted (subject to limits or conditions), such as the leasing or selling of municipal property for less than fair market value, the lending of money, or the granting of exemptions from municipal levies, fees or charges. No regulations have yet been proposed setting out the particulars of this power.
• Upper-Tier Municipalities: Bill 23 previously introduced the concept of “upper-tier municipalities without planning responsibilities” to the Planning Act. Bill 185 builds upon this concept by providing that the Regional Municipalities of Peel, York and Halton are to become “upper-tier municipalities without planning responsibilities” as of July 1, 2024, and the County of Simcoe and the Regional Municipalities of Durham, Niagara and Waterloo will become “upper-tier municipalities without planning responsibilities” on dates to be named by proclamation.[11] As “upper-tier municipalities without planning responsibilities”, this County and these Regions would no longer maintain a separate, governing upper-tier official plan and would no longer have approval authority over their respective lower-tier municipalities’ planning decisions. In such cases, the respective lower-tier municipalities will need to take on such review and approval responsibilities.
• New Appeal Rights Respecting Settlement Boundary Areas: Bill 185 proposes amendments to the Planning Act to allow appeals of a municipality’s refusal or failure to adopt or approve an application for an (“OPA”) seeking to amend all or part of a settlement boundary in a municipality, provided that the subject expansion does not result in any land in the Greenbelt Area being included in the settlement boundary area.[12]
• Removal of Requirement for Pre-Consultation: While previously, the Planning Act has required, or has permitted municipalities to pass by-laws requiring, that applicants “consult” with the municipality prior to submitting applications (known as “pre-consultation”), Bill 185 has removed this as a requirement and made it available at the applicants’ discretion.[13]
• Removal of Refund Mechanism for Application Fees: Bill 185 proposes to repeal the refund mechanisms introduced by Bill 23 relating to zoning by-law amendment applications and site plan applications to the Planning Act, subject to transition provisions.[14]
• Repeal of Community Infrastructure Housing Accelerator (“CIHA”) and new Ministerial Zoning Order (“MZO”) Framework: Bill 185 proposes to repeal the CIHA provisions under the Planning Act,[15] which was a form of MZO issued at the request of a municipality.[16] The Province has also provided a new framework for MZOs with a focus on increased transparency.
• Restrictions on Parking Requirements: Bill 185 would introduce new provisions to the Planning Act providing that no official plan or zoning by-law may require provision of any parking facilities (other than for bicycles) on lands  within a protected major transit station area, in areas where minimum densities are required by official plans, or in any other areas prescribed by regulation. [17]
• Procedural Changes re: Motion for Complete OPA Application:  Bill 185 would permit applicants to make a motion for directions to have the Ontario Land Tribunal (“OLT”) determine whether the information and materials required for an OPA have been provided, or whether a requirement to provide such information or material is reasonable at any time after pre-request consultation has begun or the application fee has been paid.[18] Currently, the Planning Act requires the making of such a motion within 30 days of the municipality’s having deemed an application to be incomplete.
• Additional Residential Units (“ARUs”): Currently, the Minister is empowered under the Planning Act to require municipalities to permit second or third residential units in a detached house, semi-detached house, or rowhouse, or ancillary building or structure to such house. Bill 185 broadens these provisions to allow for exemptions respecting the construction of “any” ARUs in an existing home  (as listed above) or  structure ancillary to such house for the purposes of an ARU (provided that such criteria that may be prescribed by regulation is satisfied). [19]
• Municipal By-Laws on Allocation of Water Supply and Servicing Capacity: Currently, the Planning Act provides a system where the Province may pass regulations permitting municipalities to enact by-laws to establish an allocation system for water supply and sewage servicing for lands that are subject to a draft plan of subdivision.  Bill 185 proposes to repeal this provision of the Planning Act[20] and give municipalities the authority to pass by-laws to create a policy for water and servicing capacity, which may include the tracking of water supply and servicing capacity for approved developments, as well as establishing criteria for the allocation to future development applications.[21]

The foregoing is only a high-level overview of the key legislative amendments proposed by Bill 185 that may materially impact development approvals in the Province. Additional legislative changes have also been proposed by Bill 185, including an exemption for universities developing student housing from Planning Act and certain planning-related provisions of the City of Toronto Act, as well as revisions to (and renaming of) the Hazel McCallion Act (Peel Dissolution) to address the Province’s shift in direction from “dissolution” (as originally proposed in Bill 112 and discussed in our bulletin here) to “restructuring” of Peel Region.

New draft of the PPS

At the same time as its release of Bill 185, the Province provided an updated draft of the proposed Provincial Planning Statement which was initially introduced by Bill 97: the Helping Homebuyers, Protecting Tenants Act. In short, Bill 97 proposed to combine elements of the Provincial Policy Statement, 2020 and A Place to Grow: Growth Plan for the Greater Golden Horseshoe into a single land use policy document. You can read our bulletin on Bill 97 here. The latest draft of the Provincial Planning Statement can be viewed here, and the ERO posting is available here. The ERO posting is open for consultation until 11:59pm on May 10, 2024. Key changes include new Policy 4.1 and corresponding changes to Chapter 4, which relates to natural heritage and development in natural heritage systems. The original draft of the Provincial Planning Statement from April 2023 contained a placeholder, noting that natural heritage policies and related definitions remained under consideration by the Province as of the date of the original draft.

Conclusion

McMillan will continue to monitor the status of Bill 185 and the new Provincial Planning Statement. If you have questions or wish to make submissions to the Province regarding the policies proposed to guide the future of Ontario’s planning, development, and land use, please contact Annik Forristal, Marc Kemerer, Kailey Sutton or Patrick Pinho, and our team would be pleased to discuss this important piece of legislation and its potential impacts with you.

[1] Ontario Newsroom, News Release: “Ontario Cutting Red Tape to Build More Homes”, available online: here.
[2] Bill 185, Schedule 12, Section 10(3).
[3] Bill 185, Schedule 4, Section 3(3) and Bill 185, Schedule 12, Section 7(3).
[4] Bill 185, Schedule 4, Section 2.
[5] Bill 185, Schedule 6, Section 3.
[6] Bill 185, Schedule 6, Section 1(3).
[7] Bill 185, Schedule 6, Section 1(4).
[8] Bill 185, Schedule 12, Section 3(1).
[9] Bill 185, Schedule 4, Section 2.
[10] Bill 185, Schedule 9, Section 2.
[11] Bill 185, Schedule 12, Section 1.
[12] Bill 185, Schedule 12, Section 4(4).
[13] Bill 185, Schedule 12.
[14] Bill 185, Schedule 4, Section 3(5) and Bill 185, Schedule 12, Section 5(5).
[15] Planning Act, ss.34.1(9).
[16] Bill 185, Schedule 12, Section 6.
[17] Bill 185, Schedule 12, Section 1(8).
[18] Bill 185, Schedule 4, Section 3(2) and Schedule 12, Sections 4(3) and 5(4).
[19] Bill 185, Schedule 12, Section 9.
[20] Bill 185, Schedule 12, Section 14.
[21] Bill 185, Schedule 4, Section 1 and Schedule 9, Section 1.

by Kailey Sutton, Annik Forristal, Marc Kemerer, Patrick Pinho

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2024