The Wood Bull Guides

Section 22, Subsections (7) to (10) [Appeal Rights/Final Decision: Refusal or Failure to Adopt Official Plan Amendment]

Bill 139 introduced significant limitations on the basis for appeals of requested official plan amendments, which has been refused or where no decision has been made within the relevant statutory period.  The appeals are restricted to issues of consistency or conformity with provincial plans and policy statements and, as applicable, conformity with official plan policies of upper-tier municipalities, for both (i) the existing part or parts of the official plan that would be affected by the requested amendment and (ii) the requested amendment.  The notices of appeal are required to explain the consistency/conformity issue.

While previous amendments to the Planning Act precluded a right to appeal in regard to specific subject matters, such as settlement area boundaries or the removal of employment lands from areas of employment, Bill 139 limits the possible grounds of all rights of appeal to considerations of policy implementation, not good planning per se, except in the circumstance of a second appeal from a failure to adopt an amendment.


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  • 22(7) APPEAL TO L.P.A.T. (*)

    22(7) When a person or public body requests an amendment to the official plan of a municipality or planning board, any of the following may appeal to the Tribunal in respect of all or any part of the requested amendment, by filing a notice of appeal with the clerk of the municipality or the secretary-treasurer of the planning board, if one of the conditions set out in subsection (7.0.2) is met:

    1. The person or public body that requested the amendment.

    2. The Minister.

    3. The appropriate approval authority.  2006, c. 23, s. 11 (5); 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”.

    Related Sections

    Subsection 22(7.0.2) restricts appeals under subsection 22(7) to instances where the council/planning board fails to make a decision within 210 days of the request, or refuses the requested amendment from a person/public body.

    Related Statutes

    Subsection 38(1) and the practices and procedures set out in sections 39, 40 and 42 of the Local Planning Appeal Tribunal Act, 2017 apply to appeals to the Tribunal under subsection 22(7) 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 the relevant municipality or approval authority may be permitted to participate in an appeal on the basis of written submissions made at least 30 days before the case management conference.  The written submission must address whether the decision or failure to make a decision was inconsistent with a policy statement issued under subsection 3(1) of the Planning Act, fails to conform with or conflicts with a provincial plan, or fails to conform with an applicable official plan (s.40);

    • if the Tribunal holds an oral hearing, the only persons who may participate in the hearing are the parties, 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 22(7) of the Planning Act.

    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 26.01 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]

    Rule 27.03 Appeal of a New Decision or Non-Decision The requirements to initiate a proceeding and notice of hearing appointment set out in the provisions of these Rules shall apply in the event of any appeal of a new decision or non-decision following the remission of an appeal to municipal council, and the Rules in Part I shall apply to the disposition of that proceeding.

    Wood Bull Commentary

    Subsection 22(7) is the only right of appeal expressly given under section 22.  If an amendment is adopted as a result of an application under section 22, it is treated in the same manner as an amendment adopted pursuant to section 21 and is therefore subject to the rights of appeal under subsections 17(24) and 17(36).

  • 22(7.0.0.1) BASIS FOR APPEAL (*)

    22(7.0.0.1) An appeal under subsection (7) may only be made on the basis 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 (3).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    An explanation of the grounds of appeal is required to be included in the notice of appeal by subsection 22(8)(a.1) and (a.2).  Failure to include this explanation will result in the appeal being dismissed without a hearing (see subsection 22(11.0.4.)1.).

    Provincial plans are defined in subsection 1(1) Interpretation.

    Policy statements are issued under subsection 3(1) or deemed by subsection 3(8).

    This subsection does not apply to where a  

    Parallel subsections: zoning by-law amendments (s.34(11.0.0.0.2))

    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 addition of new subsection 22(7.0.0.1) changes and limits the basis for appeals in regard to official plan amendment application where council/planning board has failed to make a decision within the statutory time limits or has refused to adopt the amendment.

    Prior to Bill 139, subsection 22(8) simply required that the Notice of Appeal "(a) set out the specific part of the requested official plan amendment to which the appeal applies, if the notice of appeal does not apply to all of the requested amendment".  

    As a result of new subsection 22(7.0.0.1), in addition to the factual pre-requisite of the a refusal or a failure to make a decision, the appeal can only be made on the following basis:

    (a) that the existing part or parts of the official plan that would be affected by the requested 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 the official plan of a lower-tier municipality, fails 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 an amendment to a lower-tier municipality's official plan, conforms with the upper-tier municipality’s official plan.

    The grounds related to conformity with an upper-tier plan are not relevant where the amendment being requested is related to a single-tier municipality.

    The Bill 139 amendment means that there is no longer any permissible grounds of appeal which would allow a proposed official plan amendment to be judged on its planning merits per se, that is, for instance, its consistency with the principles of good planning.  

  • 22(7.0.0.2) EXCEPTION [Second Appeal, Failure to Adopt] (*)

    22(7.0.0.2) Subsection (7.0.0.1) and clauses (8) (a.1)‎ and (a.2) do not apply to an appeal under subsection (7) brought in accordance with paragraph 1 or 2 of subsection (7.0.2) 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 (3).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Subsection (7.0.0.1) and clauses (8) (a.1)‎ and (a.2) relate to the basis and notice of appeal. 

    Appeals under subsection 22(7) brought in accordance with paragraph 1 and 2 of subsection (7.0.2) relate to appeals of a failure to adopt an amendment within the prescribed time period.

    Subsections 22(11.0.12) and 17(49.6) set out the rules that apply when a municipality receives a notice from the Tribunal for an opportunity to make a new decision with respect to:

    • an official plan amendment that was appealed under subsection 22(7) (failure to adopt within the prescribed time periods and or refusal to adopt) (s.22(11.0.12))

    • an official plan amendment that was appealed under subsection 17(24) (adoption of amendments exempt from approval) or subsection 17(36) (approval authority decision) (s.17(49.6))

    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

    This subsection creates a distinction on a second appeal (where municipalities are given an opportunity to make a new decision under subsection 22(11.0.9) or 17(49.3)) between appeals from a failure to adopt an amendment within the prescribed time periods (non-decision) and appeals of a refusal to adopt an amendment.

    For non-decisions, a second appeal is not required to address the grounds of appeal regarding consistency/conformity set out in subsection 22(7.0.0.1).   The powers of the Tribunal on such an appeal are set out subsections 22(11.0.13) and 22(11.0.14).

    For a refusal to adopt an amendment, a second appeal must still address the grounds of appeal set out in subsection 22(7.0.0.1).  The powers of the Tribunal on such an appeal are set out subsections 22(11.0.13), 22(11.0.15), 22(11.0.16) and 22(11.0.17). 

  • 22(7.0.1) CONSOLIDATED HEARINGS ACT

    22(7.0.1) Despite the Consolidated Hearings Act, the proponent of an undertaking shall not give notice to the Hearings Registrar under subsection 3 (1) of that Act in respect of an amendment requested under subsection (1) or (2) unless,

    (a) one of the conditions set out in subsection (7.0.2) is met;

    (b) if the plan is exempt from approval, the requested amendment has been adopted under subsection 17 (22);

    (c) the approval authority makes a decision under subsection 17 (34); or

    (d) the time period referred to in subsection 17 (40) has expired.  2006, c. 23, s. 11 (5).

  • 22(7.0.2) CONDITIONS [For Appeals] (*)

    22(7.0.2) The conditions referred to in subsections (7) and (7.0.1) are:

    1. The council or the planning board fails to adopt the requested amendment within 210 days after the day the request is received.

    2. A planning board recommends a requested amendment for adoption and the council or the majority of the councils fails to adopt the requested amendment within 210 days after the day the request is received.

    3. A council, a majority of the councils or a planning board refuses to adopt the requested amendment.

    4. A planning board refuses to approve a requested amendment under subsection 18 (1).  2006, c. 23, s. 11 (5); 2017, c. 23, Sched. 3, s. 8 (4)

    Legislative History

    Bill 139 amended this subsection by replacing "180 days" with "210 days", with respect to the time period of a non-decision (i.e. failure to adopt the requested amendment).

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.18(3) and (4) Timelines for appealing failure to make decisions; 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

  • 22(7.0.2.1) SAME [Adopted Amendments] (*)

    22(7.0.2.1) For greater certainty, a condition set out in subsection (7.0.2) is not met if the council or the planning board adopts an amendment in response to a request under subsection (1) or (2), even if the amendment that is adopted differs from the requested amendment.  2017, c. 23, Sched. 3, s. 8 (5).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsections: zoning by-law amendments (s.34(11.0.0.0.3))

    Wood Bull Commentary

    This subsection clarifies that if council or a planning board adopts an amendment different from the requested amendment, an applicant cannot appeal under subsection 22(7).  The implication is that an applicant could appeal the adoption under subsections 17(24) or 17(36), as appropriate.

  • 22(7.0.3) TIME FOR APPEAL

    22(7.0.3) A notice of appeal under paragraph 3 or 4 of subsection (7.0.2) shall be filed no later than 20 days after the day that the giving of notice under subsection (6.6) is completed.  2006, c. 23, s. 11 (5).

  • 22(7.0.4) WHEN GIVING OF NOTICE DEEMED COMPLETED [Notice of Refusal]

    22(7.0.4) For the purposes of subsection (7.0.3), the giving of written notice shall be deemed to be completed,

    (a) where notice is given by e-mail, on the day that the sending by e-mail of all required notices is completed;

    (b) where notice is given by personal service, on the day that the serving of all required notices is completed;

    (c) where notice is given by mail, on the day that the mailing of all required notices is completed; and

    (d) where notice is given by telephone transmission of a facsimile of the notice, on the day that the transmission of all required notices is completed.  2015, c. 26, s. 21 (5).

  • 22(7.1) APPEALS RESTRICTED RE CERTAIN AMENDMENTS

    22(7.1) Despite subsection (7) and subsections 17 (36) and (40), there is no appeal in respect of,

    (a) a refusal or failure to adopt an amendment described in subsection (7.2); or

    (b) a refusal or failure to approve an amendment described in subsection (7.2).  2006, c. 23, s. 11 (6).

  • 22(7.2) APPLICATION OF SUBS. (7.1)

    22(7.2) Subsection (7.1) applies in respect of amendments requested under subsection (1) or (2) that propose to,

    (a) alter all or any part of the boundary of an area of settlement in a municipality;

    (b) establish a new area of settlement in a municipality; or

    (c) amend or revoke the policies described in subsection 16 (3), including, for greater certainty, any requirements or standards that are part of such policies.  2006, c. 23, s. 11 (6); 2011, c. 6, Sched. 2, s. 4.

  • 22(7.3) SAME

    22(7.3) If the official plan contains policies dealing with the removal of land from areas of employment, subsection (7.1) also applies in respect of amendments requested under subsection (1) or (2) that propose to remove any land from an area of employment, even if other land is proposed to be added.  2006, c. 23, s. 11 (6).

  • 22(7.4) EXCEPTION [To s.22(7.1)]

    22(7.4) Despite subsection (7.1), a person or public body may appeal to the Tribunal in respect of all or any part of a requested amendment described in clause (7.2) (a) or (b) if the requested amendment,

    (a) is in respect of the official plan of a lower-tier municipality; and

    (b) conforms with the official plan of the upper-tier municipality.  2006, c. 23, s. 11 (6); 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”.

  • 22(8) CONTENTS [Notice of Appeal] (*)

    22(8) A notice of appeal under subsection (7) shall,

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

    (a.1) explain how 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;

    (a.2) explain how 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; and

    (b) be accompanied by the fee charged under the Local Planning Appeal Tribunal Act, 2017.  1996, c. 4, s. 13; 2017, c. 23, Sched. 3, s. 8 (6); 2017, c. 23, Sched. 5, s. 81.

    Legislative History

    Bill 139 amended this subsection by (1) adding clauses (a.1) and (a.2) and (2) replacing the words “the fee prescribed under the Ontario Municipal Board Act” with the words “the fee charged under the Local Planning Appeal Tribunal Act, 2017”.

    Related Sections
    Parallel subsections: zoning by-law amendments (s.34(11.0.0.0.4))
    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 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

    The notice of appeal must explain how  the proposed amendment (1) addresses an alleged inconsistency/non-conformity in regard to the matters identified in clause (a.1) and (2) is consistent/conforms with the same matters identified in clause(a.2).   Conformity/non-conformity with an upper-tier plan is not relevant where the amendment being requested is related to a single-tier municipality.

    If the explanation in the Notice of Appeal is not sustainable, the appeal will prove to be ineffective because it will be dismissed by the Tribunal (see s.17(45)).  

    Therefore, the explanation required by subsection 22(8) is very important as it will be the key consideration when the grounds are considered by the Tribunal. 

    See Commentary on subsection 22(7.0.01) regarding the implications of limiting the grounds of appeal.

    A failure to pay the required fee within the required time is not fatal to the appeal; however, it may affect the scheduling of the hearing process. Mono (Town) Official Plan Amendment No. 23 (Re), 41 O.M.B.R. 190 (O.M.B.).

  • 22(8.1) USE OF DISPUTE RESOLUTION TECHNIQUES

    22(8.1) If an appeal under subsection (7) is brought in accordance with paragraph 3 or 4 of subsection (7.0.2), the council or planning board may use mediation, conciliation or other dispute resolution techniques to attempt to resolve the dispute.  2015, c. 26, s. 21 (6).

  • 22(8.2) NOTICE AND INVITATION [For Dispute Resolution]

    22(8.2) If the council or planning board decides to act under subsection (8.1),

    (a) it shall give a notice of its intention to use dispute resolution techniques to all the appellants; and

    (b) it shall give an invitation to participate in the dispute resolution process to,

    (i) as many of the appellants as the council or planning board considers appropriate,

    (ii) the person or public body that made the request to amend the plan,

    (iii) the Minister,

    (iv) the appropriate approval authority, and

    (v) any other persons or public bodies that the council or planning board considers appropriate.   2015, c. 26, s. 21 (6).

  • 22(8.3) EXTENSION OF TIME [To Forward Appeal Record, Dispute Resolution]

    22(8.3) When the council or planning board gives a notice under clause (8.2) (a), the 15-day period mentioned in subclauses (9) (b) (ii) and (9) (c) (ii), in clauses (9.1) (b) and (9.1.1) (c) and in subsection (9.3) is extended to 75 days.  2015, c. 26, s. 21 (6).

  • 22(8.4) PARTICIPATION VOLUNTARY [Dispute Resolution]

    22(8.4) Participation in the dispute resolution process by the persons and public bodies who receive invitations under clause (8.2) (b) is voluntary.  2015, c. 26, s. 21 (6).

  • 22(9) RECORD [To Tribunal/Approval Authority]

    22(9) The clerk of a municipality or the secretary-treasurer of a planning board who receives a notice of appeal under subsection (7) shall ensure that,

    (a) a record is compiled which includes the prescribed information and material;

    (b) the notice of appeal, the record and the fee are forwarded to the Tribunal,

    (i) in the case of an appeal brought in accordance with paragraph 1 or 2 of subsection (7.0.2), within 15 days after the notice is filed,

    (ii) in the case of an appeal brought in accordance with paragraph 3 or 4 of subsection (7.0.2), within 15 days after the last day for filing a notice of appeal;

    (c) the notice of appeal and the record are forwarded to the appropriate approval authority, whether or not the plan is exempt from approval,

    (i) in the case of an appeal brought in accordance with paragraph 1 or 2 of subsection (7.0.2), within 15 days after the notice is filed,

    (ii) in the case of an appeal brought in accordance with paragraph 3 or 4 of subsection (7.0.2), within 15 days after the last day for filing a notice of appeal; and

    (d) such other information or material as the Tribunal may require in respect of the appeal is forwarded to the Tribunal. 2015, c. 26, s. 21 (7); 2017, c. 23, Sched. 5, s. 88 (2).

    Legislative History

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

    Related Regulations

    O. Reg. 543/06: OFFICIAL PLANS AND PLAN AMENDMENTS, s. 13 re Record compiled by clerk

    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 26.04 Enhanced Municipal Record When an appeal is filed with the municipality or approval authority in a proceeding to which the rules of Part II apply, the municipality or approval authority shall prepare a municipal record as prescribed by regulation under the Planning Act and in accordance with Rule 5.04., and in addition to those requirements, shall organize the record of documents and materials in chronological order with a contents page(s) outlining the title or a concise description of each entry separated by tabs and capable of being copied and bound or secured in a binder(s). The municipality or approval authority shall provide a paper copy of the municipal record to the Tribunal, as well as one electronic copy (pursuant to Rule 7.01). The municipality or approval authority shall also provide one electronic copy to each person who has filed an appeal, and shall maintain one paper copy with the clerk of the municipality, which shall be available for inspection by any person or copied at a reasonable cost during business hours.

  • 22(9.1) EXCEPTION

    22(9.1) Clauses (9) (b) and (d) do not apply,

    (a) in the case of an appeal brought in accordance with paragraph 1 or 2 of subsection (7.0.2), if the appeal is withdrawn within 15 days after the notice is filed;

    (b) in the case of an appeal brought in accordance with paragraph 3 or 4 of subsection (7.0.2), if all appeals under subsection (7) are withdrawn within 15 days after the last day for filing a notice of appeal.   2015, c. 26, s. 21 (8).

  • 22(9.1.1) SAME

    22(9.1.1) Clause (9) (c) does not apply,

    (a) if the approval authority has notified the municipality or the planning board that it does not wish to receive copies of the notices of appeal and the records;

    (b) in the case of an appeal brought in accordance with paragraph 1 or 2 of subsection (7.0.2), if the appeal is withdrawn within 15 days after the notice is filed;

    (c) in the case of an appeal brought in accordance with paragraph 3 or 4 of subsection (7.0.2), if all appeals under subsection (7) are withdrawn within 15 days after the last day for filing a notice of appeal.  2015, c. 26, s. 21 (8).

 


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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