The Wood Bull Guides

Section 22, Subsections (11) to Section 22.1 [Official Plan Amendment Appeal Process, New Municipal Decisions, Second Appeals, Transition]

Subsections 22(11) through (13) establish the new framework under which appeals of a non-decision or refusal of a requested official plan amendment are processed under the post-Bill 139 Planning Act.  Whereas the appeal framework for requested amendments was incorporated into section 22 by way of reference to section 17 in the pre-Bill 139 Planning Act, the (amended) appeal framework is now found in section 22.

A dismissal is mandatory under subsection 22(11.0.4) where the Tribunal has determined that an appeal is not valid.  The grounds for dismissal include the failure to provide the requisite explanations in the notice of appeal, which reflect the restrictive basis for appeal in subsection 22(8).

New subsections 22(11.0.8) through (11.0.17) establish the powers of the Tribunal on appeals made pursuant to subsection 22(7).

First Appeal:  The Tribunal must dismiss the appeal, unless the Tribunal determines that (i) an existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a provincial policy statement, fail to conform with or conflict with a provincial plan or, where applicable, fail to conform with an upper-tier official plan; and (ii) the requested amendment is consistent/conforms.  Where the Tribunal has made such a determination, the Tribunal shall provide the municipality or planning board with the opportunity to make a new decision on the matter.

Second Appeal: On an appeal of the failure of a municipality or planning board to adopt the requested amendment, the Tribunal has the power to approve, modify and approve, or refuse to approve, all or part of the requested amendment.  With respect to an appeal of a refusal to adopt the requested amendment, the Tribunal has this power only where the Tribunal determines that the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a provincial policy statement, fail to conform with or conflict with a provincial plan or, where applicable, fail to conform with an upper-tier official plan, and the requested amendment is consistent/conforms.  Otherwise, the appeal must be dismissed.

Revised Amendment: With the consent of all specified parties, a revised amendment may be presented to the Tribunal for approval at the first appeal and/or second appeal stage.

The amended appeal process does not apply where the Minister has notified the Tribunal of provincial interest in a matter.  In such instance, the Tribunal retains the power at first instance to approve, modify and approve, or refuse to approve, all or part of the requested amendment.


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  • 22(11) HEARING (*)

    22(11) On an appeal to the Tribunal, the Tribunal shall hold a hearing of which notice shall be given to such persons or such public bodies and in such manner as the Tribunal may determine.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    Bill 139 repealed former subsection 22(11), which applied the hearing process set out in section 17 to section 22 appeals:

    Application

    (11) Subsections 17 (44) to (44.7), (45), (45.1), (46), (46.1), (49), (50)  and (50.1) apply with necessary modifications to a requested official plan amendment under this section, except that subsections 17 (44.1) to (44.7) and (45.1) do not apply to an appeal under subsection (7) of this section, brought in accordance with paragraph 1 or 2 of subsection (7.0.2).

    Related Sections

    Parallel subsections: 

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Related Tribunal Rules

    Rules of Practice and Procedure: see Rules 26.11 to 26.26 regarding the process prior to and at Tribunal hearings.

    Wood Bull Commentary

    Prior to Bill 139, the hearing process for appeals under section 22 was addressed through section 17 by way of reference in subsection 22(11) (see Legislative History).  Bill 139 added new subsections 22(11) - (11.0.7), which bring the requirements of the previously referenced subsections of section 17 wholly within section 22.

    The contents of new subsection 22(11) were previously incorporated into section 22 by operation of subsection 22(11) and 17(44) of the pre-Bill 139 Planning Act.   No substantial changes were made to the content of subsection 17(44) through Bill 139.

  • 22(11.0.1) RESTRICTION RE ADDING PARTIES (*)

    22(11.0.1) Despite subsection (11), in the case of an appeal under subsection (7) brought in accordance with paragraph 3 or 4 of subsection (7.0.2), only the following may be added as parties:

    1.  A person or public body who satisfies one of the conditions set out in subsection (11.0.2).

    2.  The Minister.

    3.  The appropriate approval authority.   2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    This subsection relates to appeals of refusals of requested official plan amendments (s.22(7.0.2) paras 3 and 4).

    Parallel subsections: 

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    The contents of subsection 22(11.0.1) were previously incorporated into section 22 by operation of subsection 22(11) and 17(44.1) of the pre-Bill 139 Planning Act (see Legislative History and Commentary for s.22(11)).  No changes were made to the content of the provision through Bill 139.

  • 22(11.0.2) SAME (*)

    22(11.0.2)  The conditions mentioned in paragraph 1 of subsection (11.0.1) are:

    1.  Before the requested amendment was refused, the person or public body made oral submissions at a public meeting or written submissions to the council or planning board.

     2.  The Tribunal is of the opinion that there are reasonable grounds to add the person or public body as a party.  2017, c. 23, Sched. 3, s. 8 (7).
    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsections: 

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    The contents of subsection 22(11.0.2) were previously incorporated into section 22 by operation of subsection 22(11) and 17(44.2) of the pre-Bill 139 Planning Act (see Legislative History and Commentary for s.22(11)).  No substantial changes were made to the content of the provision through Bill 139.

  • 22(11.0.3) CONFLICT WITH SPPA [re Adding Parties] (*)

    22(11.0.3) Subsections (11.0.1) and (11.0.2) apply despite the Statutory Powers Procedure Act.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsections: 

    Related Statutes

    Section 5 of the Statutory Powers Procedures Act:

    Parties

    5. The parties to a proceeding shall be the persons specified as parties by or under the statute under which the proceeding arises or, if not so specified, persons entitled by law to be parties to the proceeding.

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    The contents of subsection 22(11.0.3) were previously incorporated into section 22 by operation of subsection 22(11) and 17(44.7) of the pre-Bill 139 Planning Act (see Legislative History and Commentary for s.22(11)).  No substantial changes were made to the content of the provision through Bill 139.

  • 22(11.0.4) DISMISSAL WITHOUT HEARING (*)

    22(11.0.4) Despite the Statutory Powers Procedure Act and subsection (11), the Tribunal shall dismiss all or part of an appeal without holding a hearing on its own initiative or on the motion of any party if any of the following apply:

    1.  The Tribunal is of the opinion that the explanations required by clauses (8) (a.1) and (a.2) do not disclose both of the following:  

    i.  That the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a policy statement issued under subsection 3 (1), fail to conform with or conflict with a provincial plan or, in the case of the official plan of a lower-tier municipality, fail to conform with the upper-tier municipality’s official plan.

    ii.  That the requested amendment is consistent with policy statements issued under subsection 3 (1), conforms with or does not conflict with provincial plans and, in the case of a requested amendment to the official plan of a lower-tier municipality, conforms with the upper-tier municipality’s official plan.

    2.  The Tribunal is of the opinion that,

    i.  the appeal is not made in good faith or is frivolous or vexatious,

    ii.  the appeal is made only for the purpose of delay, or

    iii.  the appellant has persistently and without reasonable grounds commenced before the Tribunal proceedings that constitute an abuse of process.

    3.  The appellant has not provided the explanations required by clauses (8) (a.1) and (a.2).

    4.  The appellant has not paid the fee charged under the Local Planning Appeal Tribunal Act, 2017 and has not responded to a request by the Tribunal to pay the fee within the time specified by the Tribunal.

    5.  The appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    An explanation of the grounds of appeal is required to be set out in a notice of appeal (s.22(8)(a.1) and (a.2)).

    Parallel subsections:

    • official plans and official plan amendments (s.17(45))

    • zoning by-law amendments (s.34(25))

    Related Statutes

    Section 4.6 of the Statutory Powers Procedure Act allows a tribunal to dismiss a proceeding without a hearing and prescribes notice and other requirements that must be met before a proceeding can be so dismissed.

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    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.

    Rule 26.06 Dispute as to a Valid Appeal Where the screening has made a preliminary determination that a notice of appeal is valid, the municipality, the approval authority or a party including a person whose application is the subject of the appeal, if they wish to challenge that preliminary determination, may request a date for a motion from the Tribunal, with notice to the Appellant, to set aside the validation of the notice of appeal and to seek an order to dismiss the appeal without a hearing. The requirements in Rule 10 will apply to the motion.

    Rule 26.07 Tribunal Member May Initiate a Motion A Member may initiate a motion, at any time in a proceeding, and direct the municipality, approval authority or a party including a person whose application is the subject of the appeal, to file and exchange submissions necessary for the Tribunal to inquire into the matter of its jurisdiction over the matter raised in the notice of appeal.

    Rule 26.08 Dispute as to a Not Valid Appeal Where the Tribunal has made a preliminary determination that an appeal is not valid, the Tribunal shall notify the person who filed the appeal. A person so notified may within 15 days make a written motion to the Tribunal under Rule 10, challenging the preliminary determination that an appeal is not valid and shall provide the motion materials to the municipality, approval authority and any other Appellants. The requirements in Rule 10 will apply to this motion.

    Rule 26.09 The Effect of a Ruling under RULE 26.06, RULE 26.07 and RULE 26.08 In the event the Tribunal makes a determination that an appeal is not valid, the appeal is dismissed. In the event the Tribunal sets aside the preliminary determination and finds that the appeal is valid, the appeal will proceed in accordance with the process outlined by these Rules.

    Wood Bull Commentary

    Prior to Bill 139, subsection 17(45) applied to appeals under section 22 by operation of subsection 22(11) (See Legislative History for subsection 22(11)). 

    Subsection 22(11.0.4) makes the dismissal of an appeal without holding a hearing mandatory on certain grounds, whereas prior to Bill 139, it was previously discretionary under subsection 17(45).  The grounds for dismissal identified in the subsection are similar in principle to those identified in subsection 17(45) of the pre-Bill 139 Planning Act, and in that context, some case law decided under the pre-Bill 139 Planning Act may remain relevant or helpful. 

    One new ground has been added, being the failure of an appellant to provide the requisite explanations in the notice of appeal.  In the post-Bill 139 Planning Act, an appellant is required in all notices of appeal to explain two matters:

    a) how the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a provincial policy statement or fail to conform with or conflict with an applicable provincial plan or upper tier official plan (s.22(8)(a.1)); and

    b) how the requested amendment is consistent with all applicable provincial policy statements and conforms with or does not conflict with all applicable provincial plans and upper-tier official plans (s.22(8)(a.2)).

    As set out in paragraph 3 of this subsection, if an appellant fails to provide these two explanations in the notice of appeal, the Tribunal must dismiss the appeal without holding a hearing. Additionally (as set out in paragraph 1), if the explanations provided in the notice of appeal do not disclose both of the matters identified above, the Tribunal must dismiss the appeal without holding a hearing.  See above Rules of Practice and Procedure.

    As noted above, other grounds for dismissal that appeared in the pre-Bill 139 Planning Act remain in the post-Bill 139 Planning Act.

  • 22(11.0.5) SAME [Substantially Different Application] (*)

    22(11.0.5)  Despite the Statutory Powers Procedure Act and subsection (11), the Tribunal may, on its own initiative or on the motion of the municipality, the planning board, the appropriate approval authority or the Minister, dismiss all or part of an appeal without holding a hearing if, in the Tribunal’s opinion, the application to which the appeal relates is substantially different from the application that was before council or the planning board at the time of its decision.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsections:

    Related Statutes

    Section 4.6 of the Statutory Powers Procedure Act allows a tribunal to dismiss a proceeding without a hearing and prescribes notice and other requirements that must be met before a proceeding can be so dismissed.

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    The contents of the subsection 22(11.0.5) were previously incorporated into Section 22 by operation of subsection 22(11) and 17(45.1) of the pre-Bill 139 Planning Act.  Subsection 17(45.1) was not substantively amended by Bill 139. 

  • 22(11.0.6) REPRESENTATION (*)

    22(11.0.6) Before dismissing all or part of an appeal, the Tribunal shall notify the appellant and give the appellant the opportunity to make representation on the proposed dismissal but this subsection does not apply if the appellant has not complied with a request made under paragraph 4 or 5 of subsection (11.0.4).  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsections:

    • official plans and official plan amendments (s.17(46))

    • zoning by-law amendments (s.34(25.1))

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    The contents of the subsections 22(11.0.6) were previously incorporated into Section 22 by operation of subsection 22(11) and 17(46) of the pre-Bill 139 Planning Act.  No substantial changes were made to the content of the provision through Bill 139.

  • 22(11.0.7) DISMISSAL (*)

    22(11.0.7)  Despite the Statutory Powers Procedure Act, the Tribunal may dismiss all or part of an appeal after holding a hearing or without holding a hearing on the motion under subsection (11.0.4) or (11.0.5), as it considers appropriate.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsections: 

    • official plans and official plan amendments (s.17(46.1))

    • zoning by-laws and amendments (s.34(25.2))

    Related Statutes

    Section 4.6 of the Statutory Powers Procedure Act allows a tribunal to dismiss a proceeding without a hearing and prescribes notice and other requirements that must be met before a proceeding can be so dismissed.

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    The contents of subsection 22(11.0.7) were previously incorporated into Section 22 by operation of subsection 22(11) and 17(46.1) of the pre-Bill 139 Planning Act (see Legislative History and Commentary for s.22(11)).  No substantial changes were made to the content of the provision through Bill 139.

  • 22(11.0.8) POWERS OF L.P.A.T. — APPEALS UNDER SUBS. (7) (*)

    22(11.0.8) Subject to subsections (11.0.9) to (11.0.17), after holding a hearing on an appeal under subsection (7), the Tribunal shall dismiss the appeal.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    This subsection relates to appeals of a non-decision or refusal to adopt a requested official plan amendment (s.22(7)).

    Parallel subsections: 

    • official plans and official plan amendments (s.17(49.1))

    • zoning by-laws and amendments (s.34(26))

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    Subsection 22(11.0.8) establishes the requirement that the Tribunal dismiss all appeals made pursuant to subsection 22(7) after holding a hearing, except where specifically prescribed.  This legislative structure starkly contrasts that of the pre-Bill 139 Planning Act, which on any appeal gave the Ontario Municipal Board the power to approve all or part of an official plan, make modifications to all or part of the plan and approve all or part of the plan as modified as an official plan or refuse to approve all or part of the plan (see subsection 22(11) and subsection 17(50) of the pre-Bill 139 Planning Act). 

    In the context of a first appeal (appeal of an original decision), the only instances in which the Tribunal is not required to dismiss an appeal are when:

    a) The Tribunal determines that:

    • the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a provincial policy statement or fail to conform with or conflict with an applicable provincial plan or upper tier official plan; and

    • the requested amendment is consistent with all applicable provincial policy statements and conforms with or does not conflict with all applicable provincial plans and upper-tier official plan,

    in which case, the Tribunal is required to send the matter back to the municipality to give it an opportunity to make a new decision in respect of the matter (see s.22(11.0.9)), or

    b) A revised plan is presented to the Tribunal with the consent of all of the parties specified by the Act.  If the revised amendment is consistent with all applicable provincial policy statements and conforms with all applicable provincial plans and upper-tier official plans, the Tribunal is required to approve it.  If the revised amendment lacks consistency or conformity, at the first appeal stage the Tribunal must send the matter back to the municipality to give it an opportunity to make a new decision in respect of the matter. 

    In the context of a second appeal (appeal of a new decision), the only instances in which the Tribunal is not required to dismiss an appeal are when:

    a) On a non-decision by the municipality, in which case the Tribunal has the power to approve all or part of the requested amendment, modify the requested amendment, or refuse to approve the requested amendment.

    b) On a refusal by the municipality, the Tribunal determines that:

    • the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a provincial policy statement or fail to conform with or conflict with an applicable provincial plan or upper tier official plan; and

    • the requested amendment is consistent with all applicable provincial policy statements and conforms with or does not conflict with all applicable provincial plans and upper-tier official plan,

    in which case the Tribunal has the power to approve all or part of the requested amendment, modify the requested amendment, or refuse to approve the requested amendment.

    c)  A revised plan is presented to the Tribunal with the consent of all of the parties specified by the Act.  If the revised amendment is consistent with all applicable provincial policy statements and conforms with all applicable provincial plans and upper-tier official plans, the Tribunal is required to approve it.  If the revised amendment lacks consistency or conformity, in which case the Tribunal has the power to modify the requested amendment, or refuse to approve the requested amendment.

    As noted above, in all other instances, the Tribunal must dismiss the appeal.

  • 22(11.0.9) NOTICE RE OPPORTUNITY TO MAKE NEW DECISION (*)

    22(11.0.9)  Unless subsection (11.0.10) or (11.0.13) applies, on an appeal under subsection (7), the Tribunal shall notify the clerk of the municipality or the secretary-treasurer of the planning board, as the case may be, that received the request for an official plan amendment that the municipality or planning board is being given an opportunity to make a new decision in respect of the matter, if the Tribunal determines that,

    (a)  the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a policy statement issued under subsection 3 (1), fail to conform with or conflict with a provincial plan or, in the case of the official plan of a lower-tier municipality, fail to conform with the upper-tier municipality’s official plan; and

    (b)  the requested amendment is consistent with policy statements issued under subsection 3 (1), conforms with or does not conflict with provincial plans and, in the case of a requested amendment to the official plan of a lower-tier municipality, conforms with the upper-tier municipality’s official plan.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    This subsection relates to appeals of a non-decision or refusal to adopt a requested official plan amendment (s.22(7)).

    This subsection does not apply where:

    • a revised amendment is presented to the Tribunal with the consent of all of the specified parties (s.22(11.0.10))

    • a municipality was given an opportunity to make a new decision, on a non-decision or refusal (second appeal) (s.22(11.0.13))

    Parallel subsections: 

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Related Tribunal Rules

    Rules of Practice and Procedure:

    Rule 27.01 Identification of Failure of Consistency or Conformity Where the Tribunal has determined in the appeal before it that there is a lack of consistency with a policy statement issued under subsection 3(1) of the Planning Act or a failure to conform with, or a conflict with, a provincial plan or applicable official plan, the Tribunal will set forth in a written decision its specific findings in that regard, which decision shall be issued and delivered to the Municipal Council/Approval Authority and the other parties to the appeal.

    Rule 27.02 Identification of Options to Achieve Compliance In the written decision referred to in Rule 27.01, the Tribunal may, but is not obliged to, identify one or more options to remedy the inconsistency or conflict or lack of conformity.

    Wood Bull Commentary

    Subsection 22(11.0.9) is one of the exceptions to the requirement that the Tribunal dismiss an appeal after holding a hearing. 

    This subsection provides that if the Tribunal determines that:

    • the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent, fails to conform or conflict, as per clause (a); and

    • the requested amendment is consistent and conforms/does not conflict, as per clause (b)

    the Tribunal must (instead of dismissing the appeal) notify the municipality that it is being given an opportunity to make a new decision in respect of the matter.  At this stage, the Tribunal has no power to approve, modify or refuse the requested amendment. 

  • 22(11.0.10) REVISED AMENDMENT WITH CONSENT OF PARTIES (*)

    22(11.0.10) Unless subsection (11.0.16) applies, if a revised amendment is presented to the Tribunal with the consent of all of the parties specified in subsection (11.0.19), the Tribunal shall approve the revised amendment as an official plan amendment except for any part of it that is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or, in the case of an amendment to the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality’s official plan.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    This subsection does not apply to a second appeal, where a revised amendment is presented to the Tribunal with the consent of all of the specified parties (s.22(11.0.16)).

    The parties that are required to consent to the revised plan are set out in subsection 22(11.0.19).

    Parallel subsections:

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    Subsection 22(11.0.10) is one of the exceptions to the requirement that the Tribunal dismiss an appeal after holding a hearing. 

    This subsection provides that if the Tribunal is presented with a revised amendment with the consent of all of the specified parties, the Tribunal is required to approve the revised amendment provided it is consistent with all applicable provincial policy statements and conforms with all applicable provincial plans and upper-tier official plans.  

    If the Tribunal determines that any part of the revised amendment  lacks consistency or conformity, the Tribunal must notify the municipality that it is being given an opportunity to make a new decision in respect of the matter (see subsection 22(11.0.11)).

  • 22(11.0.11) SAME, NOTICE TO MAKE NEW DECISION (*)

    22(11.0.11) If subsection (11.0.10) applies and the Tribunal determines that any part of the revised amendment is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or, in the case of an amendment to the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality’s official plan, the Tribunal shall notify the clerk of the municipality or the secretary-treasurer of the planning board, as the case may be, that received the request for an official plan amendment that the municipality or planning board is being given an opportunity to make a new decision in respect of the matter.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsections:

    • official plans and official plan amendments (s.17(49.5))

    • zoning by-laws and amendments (s.34(26.4))

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Related Tribunal Rules

    Rules of Practice and Procedure:

    Rule 27.01 Identification of Failure of Consistency or Conformity Where the Tribunal has determined in the appeal before it that there is a lack of consistency with a policy statement issued under subsection 3(1) of the Planning Act or a failure to conform with, or a conflict with, a provincial plan or applicable official plan, the Tribunal will set forth in a written decision its specific findings in that regard, which decision shall be issued and delivered to the Municipal Council/Approval Authority and the other parties to the appeal.

    Rule 27.02 Identification of Options to Achieve Compliance In the written decision referred to in Rule 27.01, the Tribunal may, but is not obliged to, identify one or more options to remedy the inconsistency or conflict or lack of conformity.

    Wood Bull Commentary

    Subsection 22(11.0.11) is one of the exceptions to the requirement that the Tribunal dismiss an appeal after holding a hearing.  

    This subsection provides that if the Tribunal is presented with a revised amendment with the consent of all of the specified parties, and the Tribunal determines that any part of the revised amendment is inconsistent with a provincial policy statement or fails to conform with an applicable provincial plan or upper-tier official plan, the Tribunal must (instead of dismissing the appeal) notify the municipality that it is being given an opportunity to make a new decision in respect of the matter.

  • 22(11.0.12) RULES THAT APPLY IF NOTICE RECEIVED (*)

    22(11.0.12) If the clerk or secretary-treasurer has received notice under subsection (11.0.9) or (11.0.11), the following rules apply:

    1.  The council of the municipality or the planning board may prepare and adopt an amendment, subject to the following:

    i.  Subsections 17 (16) and (17.1) do not apply.

    ii.  If the amendment is not exempt from approval,

    A.  the reference to “within 210 days” in subsection 17 (40) shall be read as “within 90 days”, and

    B.  subsection 17 (40.1) does not apply.

    2.  The references to “within 210 days after the day the request is received” in paragraphs 1 and 2 of subsection (7.0.2) shall be read as “within 90 days after the day notice under subsection (11.0.9) or (11.0.11) was received”.  2017, c. 23, Sched. 3, s. 8 (7).
    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    The notices that trigger this subsection are:

    • a notice issued by the Tribunal in instances where it determines that part of the existing plan that would be affected by the requested amendment is inconsistent with a provincial policy statement or fails to conform with an applicable provincial plan or upper-tier official plan and the proposed amendment is consistent and conforms (s.22(11.0.9))

    • a notice issued by the Tribunal in instances where it determines that any part of a revised plan presented to the Tribunal on the consent of the specified parties is inconsistent with a provincial policy statement or fails to conform with an applicable provincial plan or upper-tier official plan (s.22(11.0.1))

    The steps that do not apply when a municipality is preparing and adopting another plan (the second approvals process) are: 

    • the requirement to hold an open house (s.17(16))

    • the requirement to submit to the Minister a copy of the proposed plan at least 90 days prior to issuing notice of the public meeting (s.17(17.1))

    • the ability to extend the time for appeal by another 90 days (s.17(40.1)).

    Parallel subsections:

    • official plans and official plan amendments (s.17(49.6))

    • zoning by-laws and amendments (s.34(26.5))

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    Subsection 22(11.0.12) establishes the rules that apply where the Tribunal notifies the municipality that it is being given an opportunity to make a new decision in respect of a matter. 

    This subsection allows a municipality to prepare and adopt a new amendment.  As with the first municipal decision, the second municipal decision is subject to the process prescribed by Sections 17 and 22, including the appeal provisions in subsection 22(7).  However, modifications apply to the process for the second municipal decision: some steps are not required and shortened time frames apply for the accruing of an appeal right for a non-decision:

    • Whereas a 210-day period applies at first instance to establish an appeal right for a non-decision by an approval authority on a non-exempt amendment (see s.17(40)), a 90-day period applies in connection with a new amendment.  Note subsection 17(50) provides that the amended appeal process would not apply to an appeal of such a non-decision.

    • Whereas the 210-day period applicable to establish an appeal right for a non-decision by an approval authority for a non-exempt amendment can be extended in certain circumstances (see s.17 (40.1)), no extension can be made in connection with a new amendment.  Note subsection 17(50) provides that the amended appeal process would not apply to an appeal of such a non-decision.

    • Whereas a 210-day period applies at first instance to establish appeal rights for a municipal non-decision on a requested amendment, a 90-day period applies in connection with a new amendment.

  • 22(11.0.13) SECOND APPEAL (*)

    22(11.0.13) Subsections (11.0.14) to (11.0.16) apply with respect to an appeal under subsection (7) that concerns a request in respect of which the municipality or planning board was given an opportunity to make a new decision in accordance with subsection (11.0.12) or subsection 17 (49.6).  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    See subsections 22(11.0.14) through (11.0.16), which specify the rules that apply for appeals of a new decision, or failure to make such a decision.

    The opportunity to make a new decision may be given in instances where:

    • the Tribunal determines that, (a) the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a provincial policy statement or fail to conform with an applicable provincial plan or upper-tier official plan, and (b) the requested amendment is consistent with all applicable provincial policy statements and conforms to all applicable provincial plans and upper-tier official plans (s.22(11.0.9))

    • the Tribunal is presented with a revised amendment with the consent of all specified parties, and the Tribunal determines that any part of the revised amendment is inconsistent with a provincial policy statement or fails to conform with an applicable provincial plan or upper-tier official plan (s.22(11.0.11) and s.(s.17(49.5)(b))

    • the Tribunal determines that part of an original municipal decision is inconsistent with a provincial policy statement or fails to conform with an applicable provincial plan or upper-tier official plan (s.17(49.3)(b))

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    Subsection 22(11.0.13) specifies the subsections that apply with respect to an appeal pursuant to subsection 22(7) that concerns a request for which a municipality or planning board has been given an opportunity to make a new decision, subject to the revised time periods that appear in subsections 22(11.0.12) and 17(49.6).

  • 22(11.0.14) SAME [Failure to Adopt] (*)

    22(11.0.14) In the case of an appeal brought in accordance with paragraph 1 or 2 of subsection (7.0.2), the Tribunal may approve all or part of the requested amendment as an official plan amendment, make modifications to all or part of the requested amendment and approve all or part of the requested amendment as modified as an official plan amendment or refuse to approve all or part of the requested amendment.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    This subsection relates to appeals of:

    • the failure of a council or planning board to adopt a requested amendment within 90 days after the day the request is received (s.22(7), 22(7.0.2)1., 22(11.0.12)2.)

    • the failure of a council to adopt a requested amendment within 90 days after the day the request is received and a planning board recommends a requested amendment for adoption (s.22(7), 22(7.0.2)2., 22(11.0.12)2.)

    Parallel subsections:

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    Subsection 22(11.0.14) is one of the exceptions to the requirement that the Tribunal dismiss an appeal after holding a hearing. 

    Subsection 22(11.0.14) applies in instances where an appeal is made for a municipality’s failure to make a new decision on a matter (a second appeal).  The time period that applies on a second appeal is 90 days after the municipality receives notice from the Tribunal that it is being given an opportunity to make a new decision.

    This subsection allows a Tribunal to approve all or part of the requested amendment, modify all or part of the requested amendment and approve all or part of the requested amendment as modified, or refuse all or part of the requested amendment (as opposed to dismissing the appeal).

  • 22(11.0.15) SAME [Refusal] (*)

    22(11.0.15) Unless subsection (11.0.16) applies, in the case of an appeal brought in accordance with paragraph 3 or 4 of subsection (7.0.2), the Tribunal may approve all or part of a requested amendment as an official plan amendment, make modifications to all or part of the requested amendment and approve all or part of the requested amendment as modified as an official plan amendment or refuse to approve all or part of the requested amendment, if the Tribunal determines that,

    (a)  the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a policy statement issued under subsection 3 (1), fail to conform with or conflict with a provincial plan or, in the case of the official plan of a lower-tier municipality, fail to conform with the upper-tier municipality’s official plan; and

    (b)  the requested amendment is consistent with policy statements issued under subsection 3 (1), conforms with or does not conflict with provincial plans and, in the case of a requested amendment to the official plan of a lower-tier municipality, conforms with the upper-tier municipality’s official plan.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    As with a first appeal, a second appeal is filed pursuant to subsection 22(7).

    This subsection relates to appeals of:

    • the refusal of a council or planning board to adopt a requested amendment (s.22(7), 22(7.0.2)3.)

    • the refusal of a planning board to approve a requested amendment under subsection 18(1) (s.22(7), 22(7.0.2)4.)

    Parallel subsection:

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    Subsection 22(11.0.15) is one of the exceptions to the requirement that the Tribunal dismiss an appeal after holding a hearing. 

    The subsection allows a Tribunal to approve all or part of the requested amendment, modify all or part of the requested amendment and approve all or part of the requested amendment as modified, or refuse all or part of the requested amendment only if it determines that, (a) the existing part or parts of the official plan that would be affected by the requested amendment are inconsistent with a provincial policy statement or fail to conform with an applicable provincial plan or upper-tier official plan, and (b) the requested amendment is consistent with all applicable provincial policy statements and conforms to all applicable provincial plans and upper-tier official plans (s.22(11.0.9))

    If the Tribunal does not make the above two determinations, the appeal will be dismissed pursuant to subsection 22(11.0.8).

  • 22(11.0.16) SAME, REVISED AMENDMENT WITH CONSENT OF PARTIES (*)

    22(11.0.16) If, on an appeal brought in accordance with paragraph 3 or 4 of subsection (7.0.2), a revised amendment is presented to the Tribunal with the consent of all of the parties specified in subsection (11.0.19), the Tribunal shall approve the revised amendment as an official plan amendment except for any part of it that is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or, in the case of an amendment to the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality’s official plan.  2017, c. 23, Sched. 3, s. 8 (7).
    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    This subsection relates to appeals of the refusal of a council or planning board to adopt a requested amendment (s.22(7), 22(7.0.2)3. and 4.).

    The parties that are required to consent to the revised plan are set out in subsection 22(11.0.19).

    Parallel subsections:

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    Subsection 22(11.0.16) is one of the exceptions to the requirement that the Tribunal dismiss an appeal after holding a hearing. 

    This subsection parallels subsection 22(11.0.10), which applies in the context of a first appeal. This subsection provides that if, on a second appeal for a refusal (not for a non-decision), the Tribunal is presented with a revised amendment with the consent of all of the specified parties, the Tribunal is required to approve that amendment except for any part of the amendment that is not consistent with a provincial policy statement or fails to conform with an applicable provincial plans or upper-tier official plans.

    Any parts of the revised amendment that are inconsistent with a provincial policy statement or fail to conform with an applicable provincial plan or upper-tier official plan are subject to subsection 22(11.0.17).

  • 22(11.0.17) SAME (*)

    22(11.0.17) If subsection (11.0.16) applies and the Tribunal determines that any part of the revised amendment is inconsistent with a policy statement issued under subsection 3 (1), fails to conform with or conflicts with a provincial plan or, in the case of an amendment to the official plan of a lower-tier municipality, fails to conform with the upper-tier municipality’s official plan, the Tribunal may make modifications to that part of the revised amendment and approve it as modified as part of an official plan amendment or refuse to approve all or part of that part of the revised amendment.  2017, c. 23, Sched. 3, s. 8 (7).
    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsections:

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused; and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    Subsection 22(11.0.17) is one of the exceptions to the requirement that the Tribunal dismiss an appeal after holding a hearing.  

    This subsection provides that if, on a second appeal for a refusal to adopt or approve a requested amendment, the Tribunal is presented with a revised plan with the consent of all of the specified parties, and the Tribunal determines that any part of the revised plan is inconsistent with a provincial policy statement or fails to conform with an applicable provincial plan or upper-tier official plan, the Tribunal may make modifications to that part of the revised amendment and approve it as modified or refuse to approve all or part of that part of the revised amendment.

  • 22(11.0.18) COMING INTO EFFECT [Revised Amendment] (*)

    22(11.0.18) If the Tribunal approves all or part of a revised amendment as an official plan amendment or part of an official plan amendment under subsection (11.0.10) or (11.0.16), the amendment or part of the amendment that is approved comes into effect as an official plan amendment or part of an official plan amendment on the day after the day the amendment or part of the amendment was approved.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    This subsection applies where the Tribunal is required to approve a revised amendment or part of a revised amendment in the context of:

    • a first appeal of a non-decision or refusal to adopt an official plan amendment (s.22(11.0.10))

    • a second appeal of a refusal to adopt an official plan amendment (s.22(11.0.16))

    Parallel subsection:

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused and s.22 Appeal re official plan amendment where failure to make decision on request

    Wood Bull Commentary

    Subsection 22(11.0.18) applies where the Tribunal approves all or part of a revised amendment that was presented to the Tribunal with the consent of all the specified parties (see s.22(11.0.19)), pursuant to subsection 22(11.0.10) or (11.0.16).  The subsection provides that the approved amendment comes into effect on the day after the amendment was approved.

    It appears that this subsection does not apply in instances where the Tribunal determines that part of the revised plan lacks consistent or conformity, and modifies that part of the revised plan and approves it as modified (per s.22(11.0.17)).

  • 22(11.0.19) SPECIFIED PARTIES [Consent, Revised Amendment] (*)

    22(11.0.19) For the purposes of subsection (11.0.10) and (11.0.16), the specified parties are:

    1.  The municipality or planning board that received the request for an official plan amendment.

    2.  The appropriate approval authority, if the approval authority is a party.

    3.  The Minister, if the Minister is a party.

    4.  The person or public body that requested an amendment to the official plan.  2017, c. 23, Sched. 3, s. 8 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    This subsection specifies which parties must provide consent in order for the Tribunal to consider a revised amendment in the context of:

    • a first appeal of a non-decision or refusal to adopt an official plan amendment (s.22(11.0.10))

    • a second appeal of a refusal to adopt an official plan amendment (s.22(11.0.16))

    Parallel subsections:

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.21 Appeal re official plan amendment where request refused and s.22 Appeal re official plan amendment where failure to make decision on request

 


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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Note: Material on the Wood Bull website is intended as general information and commentary.  Please consult the e-Laws website for the legislation.  In order to make these Wood Bull Guides useful resources, we welcome any comments and suggestions.  

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