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Section 17, Subsections (40) to (41.1) [Appeal Rights: Approval Authority Failure to Make Decision on Official Plan and Amendments]

Subsections amended by Bill 139 are marked below with (*), except for administrative amendments.

Bill 139 amended the time period for approval authorities to give notice of a decision on an adopted official plan or official plan amendment, after which appeals may be filed with respect to the non-decision.  The time period was extended from 180 days to 210 days after the day the adopted plan is received by the approval authority.  


 

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  • 17(40) APPEAL TO L.P.A.T. [Failure to Give Notice of Decision](*)

    17(40) If the approval authority fails to give notice of a decision in respect of all or part of a plan within 210 days after the day the plan is received by the approval authority, or within the longer period determined under subsection (40.1), any person or public body may appeal to the Tribunal with respect to all or any part of the plan in respect of which no notice of a decision was given by filing a notice of appeal with the approval authority, subject to subsection (41.1).  2015, c. 26, s. 18 (15); 2017, c. 23, Sched. 3, s. 6 (15).

    Legislative History

    Bill 139 amended this subsection by replacing "180 days" with "210 days" and replacing the words “the Municipal Board” with the words “the Tribunal”.

    Related Statutes

    Subsection 38(2) and the practices and procedures set out in sections 39, 41 and 42 of the Local Planning Appeal Tribunal Act, 2017 apply to appeals to the Tribunal under subsection 17(40) of the Planning Act.  These practices and procedures include the following:

    • a case management conference is mandatory and shall include discussion of opportunities for settlement (s.39);

    • persons other than the appellant or approval authority may be permitted to participate in an appeal on the basis of written submissions made in accordance with timing provided in the Tribunal's rules (s.41);

    • if the Tribunal holds an oral hearing, the only persons who may participate in the hearing are the parties and persons identified by the Tribunal under section 41, and they are restricted to making oral submissions and may not adduce evidence or call or examine witnesses (s.42).

    The restriction on the scope of oral hearings effectively eliminates de novo hearings relating to appeals under subsection 17(40) of the Planning Act.

    Related Regulations

    O. Reg. 174/16: TRANSITIONAL MATTERS — GENERAL, s.18(1) and (2) Timelines for appealing failure to make decisions; s.26 Appeal under s. 17 (40) of the Act

    Related Tribunal Rules

    Rules of Practice and Procedure:

    Rule 26.01 Application This Rule applies to appeals initiated under any of subsections 17(24), (36) and (40), 22(7), 34(11) and (19) and 51(34) of the Planning Act of a decision made by a municipality or approval authority or with respect to the failure of a municipality or approval authority to make a decision under these provisions. The Rules in Part I also apply to these proceedings, unless stated otherwise in Part II that a specific rule is not applicable or when otherwise directed by the Tribunal that a certain rule is not applicable in that proceeding.

    Rule 26.02 Rules not Applicable The following Rules in Part I are not applicable to proceedings identified as appeals to the Tribunal authorized under subsection 17 (24), (36) and (40), 22 (7), 34 (11) and (19) and 51 (34) of the Planning Act save and except where there is an appeal that arises after the municipality or approval authority was given an opportunity to make a new decision (pursuant to subsection 17 (24) and (36), 22 (7), 34 (11) and (19) of the Planning Act) following the Order of the Tribunal to remit the matter to the municipality: 

    • Rule 6.04 [Notice Periods]
    • Rule 7.04 [Prefiling of Witness Statements and Reports]
    • Rule 8.01(e) [Role and Obligations of a Party - examine/cross-examine witnesses]
    • Rule 9 [Discovery]
    • Rule 13.01(a) to (g), inclusive [Summons]
    • Rule 19 [Prehearing Conferences]

    Wood Bull Commentary

    Bill 139 did not amend this subsection to limit the grounds of appeal as is the case for an adopted official plan/amendment (see s.17(24.0.1) and 17(36.0.1)).  Therefore, an appeal of a non-decision by an approval authority may be made on the basis of  the failure to make the decision within the relevant statutory time period.  No other grounds are required .

  • 17(40.1) EXTENSION OF TIME FOR APPEAL (*)

    17(40.1) The 210-day period referred to in subsection (40) may be extended in accordance with the following rules:

    1. In the case of an amendment requested under section 22, the person or public body that made the request may extend the period for up to 90 days by written notice to the approval authority.

    2. In all other cases, the municipality may extend the period for up to 90 days by written notice to the approval authority.

    3. The approval authority may extend the period for up to 90 days by written notice to the person or public body or to the municipality, as the case may be.

    4. The notice must be given before the expiry of the 210-day period.

    5. Only one extension is permitted.  If both sides give a notice extending the period, the notice that is given first governs.

    6. The person, public body, municipality or approval authority that gave or received a notice extending the period may terminate the extension at any time by another written notice.

    7. No notice of an extension or of the termination of an extension need be given to any other person or entity.  2015, c. 26, s. 18 (15); 2017, c. 23, Sched. 3, s. 6 (16).

    Legislative History

    Bill 139 amended this subsection by replacing "180-day" with "210-day"  to reflect the amended time frame in subsection 17(40) for approval authorities to provide a notice of decision.

    Related Regulations
  • 17(40.2) EXCEPTION, NON-CONFORMING LOWER-TIER PLAN (*)

    17(40.2) Despite subsection (40), there is no appeal with respect to any part of the plan of a lower-tier municipality if, within 210 days after receiving the plan, the approval authority states that the plan or any part of it does not, in the approval authority’s opinion, conform with,

    (a) the upper-tier municipality’s official plan;

    (b) a new official plan of the upper-tier municipality that was adopted before the 210th day after the lower-tier municipality adopted its plan, but is not yet in effect; or

    (c) a revision of the upper-tier municipality’s official plan that was adopted in accordance with section 26, before the 210th day after the lower-tier municipality adopted its plan, but is not yet in effect.  2015, c. 26, s. 18 (16); 2017, c. 23, Sched. 3, s. 6 (17).

    Legislative History

    Bill 139 amended this subsection by replacing "180 days" with "210 days" and replacing "180th day" with "210th day" to reflect the time frame in subsection 17(40) for approval authorities to provide a notice of decision.

    Related Sections

    Subsection 17(40.2) is the counterpart to subsection 17(34.1), which provides that an approval authority shall not approve a lower-tier municipality's official plan that, in its opinion, is non-conforming with the various types of upper-tier official plan described in the subsections.

    For amendments to a lower-tier municipality's official plan, subsections 17(34.1) and 17(40.2) only apply to official plan updates adopted in accordance with section 26 (revisions in regard to provincial plans, matters of provincial interest and policy statements)(s.21(2)).

    Related Regulations
  • 17(40.3) NO REVIEW [Of Approval Authority Opinion By Tribunal]

    17(40.3) The approval authority’s opinion mentioned in subsection (40.2) is not subject to review by the Tribunal.  2015, c. 26, s. 18 (16); 2017, c. 23, Sched. 5, s. 80.

    Legislative History

    Bill 139 amended this subsection by replacing the words “the Municipal Board” with the words “the Tribunal”.

  • 17(40.4) TIME FOR APPEAL (*)

    17(40.4) If the approval authority states an opinion as described in subsection (40.2), the 210-day period mentioned in subsection (40) does not begin to run until the approval authority confirms that the non-conformity is resolved.  2015, c. 26, s. 18 (16); 2017, c. 23, Sched. 3, s. 6 (18).

    Legislative History

    Bill 139 amended this subsection by replacing "180-day" with "210-day"  to reflect the time frame in subsection 17(40) established by Bill 139 for approval authorities to provide a notice of decision.

    Related Regulations Wood Bull Commentary

    The effect of  subsection 17(40.4) is to re-set the 210 day processing period established by subsection 17(40), that is the period during which an appeal may not be made for a failure to give notice of a decision, regardless of whether the 210 day period had been extended pursuant to subsection 17(40.1) and regardless as to when, within the 210 day window provided by subsection 17(40.2), the approval authority expresses its opinion as to non-conformity. 

    If the time period had been extended pursuant to subsection 17(40.1) prior to the approval authority expressing its opinion pursuant to subsection 17(40.2), and the time period is re-set at 210 days, subsection 17(40.1), clause 5 provides that the time period cannot be further extended.

  • 17(41) NOTICE OF APPEAL

    17(41) A notice of appeal filed under subsection (40) must,

    (a) set out the specific part of the plan to which the appeal applies, if the notice does not apply to all of the plan; and

    (b) be accompanied by the fee charged under the Local Planning Appeal Tribunal Act, 20171996, c. 4, s. 9; 2017, c. 23, Sched. 5, s. 81.

    Legislative History

    Bill 139 amended this subsection by replacing the words “the fee prescribed under the Ontario Municipal Board Act” with the words “the fee charged under the Local Planning Appeal Tribunal, 2017”. 

    Related Tribunal Rules

    Rules of Practice and Procedure:

    Rule 26.05 Preliminary Screening of the Notice of Appeal  The Tribunal shall, within 10 days of the Registrar’s acknowledgement of receipt of a notice of appeal, undertake a screening to make a preliminary determination of the validity of the notice of appeal, and shall thereafter advise the person who filed the notice, and the municipality and the approval authority, of the result of this screening exercise.

    Wood Bull Commentary

    Bill 139 did not amend this subsection to limit the grounds of appeal as is the case for an adopted official plan/amendment (see subsections 17(24.0.1)/17(25) and 17(36.0.1)/17(37)). Therefore, an appeal of a non-decision by an approval authority may be made on the basis of  the failure to make the decision within the relevant statutory time period.  No other grounds are required

  • 17(41.1) NOTICE LIMITING APPEAL PERIOD

    17(41.1) At any time after receiving a notice of appeal under subsection (40), an approval authority may give the persons and public bodies listed in clauses (35) (a) to (d) a written notice, relating to the relevant plan and including the prescribed information; after the day that is 20 days after the day the giving of the notice is completed, no person or public body is entitled to appeal under subsection (40) with respect to the relevant plan.   2015, c. 26, s. 18 (17).

    Related Regulations

    O. Reg. 543/06: OFFICIAL PLANS AND PLAN AMENDMENTS, s.8.1 re Notice limiting appeal period

 


Bill 139 received Royal Assent on 12 December 2017, and came into force on 3 April 2018, the day named by proclamation of the Lieutenant Governor. 

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