The addition of new subsection 22(18.104.22.168) 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(22.214.171.124), 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.
(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.