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Section 34, Subsections (11) to (11.1) [Appeal Rights: Refusal or Failure to Make Decision on Zoning By-law Amendment]

Subsections amended by Bill 139 are denoted with (*), except for administrative changes.  

Bill 139 introduced significant limitations on the basis for appeals of zoning by-law amendments, which have 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, policy statements and official plans, for both (i) the existing part or parts of the by-law 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 make a decision.


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  • 34(11) APPEAL TO L.P.A.T. (*)

    34(11) Subject to subsection (11.0.0.0.1), where an application to the council for an amendment to a by-law passed under this section or a predecessor of this section is refused or the council fails to make a decision on it within 150 days after the receipt by the clerk of the application, any of the following may appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal, accompanied by the fee charged under the Local Planning Appeal Tribunal Act, 2017:

    1.  The applicant.

    2.  The Minister.   2006, c. 23, s. 15 (5); 2015, c. 26, s. 26 (4); 2017, c. 23, Sched. 3, s. 10 (1).

    Legislative History

    Bill 139 amended this subsection to reference new subsection (11.0.0.0.1) and extend the 120-day period to 150 days.

    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 34(11) 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 municipality 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 34(11) of the Planning Act.

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.18(5) and (6) Timelines for appealing failure to make decisions; s.23 Appeal re amendment to zoning by-law where application refused; s.24 Appeal re amendment to zoning by-law where failure to make decision on application

    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.

  • 34(11.0.0.0.1) SAME, WHERE AMENDMENT TO OFFICIAL PLAN REQUIRED (*)

    34(11.0.0.0.1) If an amendment to a by-law passed under this section or a predecessor of this section in respect of which an application to the council is made would also require an amendment to the official plan of the local municipality and the application is made on the same day as the request to amend the official plan, an appeal to the Tribunal under subsection (11) may be made only if the application is refused or the council fails to make a decision on it within 210 days after the receipt by the clerk of the application.  2017, c. 23, Sched. 3, s. 10 (1).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    An appeal under subsection 34(11) relates to a zoning by-law amendment that is refused or the council fails to make a decision on it within 150 days after the receipt by the clerk of the application. 

    For an official plan amendment request, appeals can be made regarding a refusal or a failure to make decision within 210 days (s.22(7) and 22(7.0.2)). 

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.18(5) and (6) Timelines for appealing failure to make decisions

    Wood Bull Commentary

    Where there is a related official plan amendment request filed simultaneously with a zoning by-law amendment request, this subsection aligns the appeal period of both requests to the 210 days for non-decisions. 

  • 34(11.0.0.0.2) BASIS FOR APPEAL (*)

    34(11.0.0.0.2) An appeal under subsection (11) may only be made on the basis that,

    (a)  the existing part or parts of the by-law that would be affected by the amendment that is the subject of the application are inconsistent with a policy statement issued under subsection 3 (1), fail to conform with or conflict with a provincial plan or fail to conform with an applicable official plan; and

    (b)  the amendment that is the subject of the application is consistent with policy statements issued under subsection 3 (1), conforms with or does not conflict with provincial plans and conforms with applicable official plans.  2017, c. 23, Sched. 3, s. 10 (1).

    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 by subsection 34(11.0.0.0.4).  Failure to include this explanation will result in the appeal being dismissed without a hearing (s.34(25)1).

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

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

    Parallel subsection: requested official plan amendments (s.22(7.0.0.1)

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.23 Appeal re amendment to zoning by-law where application refused; s.24 Appeal re amendment to zoning by-law where failure to make decision on application

    Wood Bull Commentary

    New subsection 34(11.0.0.0.1)  changes and limits the basis for appeals in regard to a zoning amendment application where Council has failed to make a decision within the statutory time limits or has refused to approve the application.  

    Prior to Bill 139, subsection 34(11) simply required the filing of a notice of appeal, as the reason for the appeal was fact-based in that the appeal related to either a refusal of the request for amendment or a failure to make a decision within the statutory time limits.  No other basis/reason was required.

    As a result of new subsection 34(11.0.0.0.1), in addition to the factual pre-requisite of the a refusal or a failure to make a decision within the statutory time limits, the appeal can only be made on the following basis:

    (a) that the existing part or parts of the zoning by-law 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

    • fails to conform with the applicable 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

    • conforms with the applicable municipality’s official plan.

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

  • 34(11.0.0.0.3) SAME [Amendment Passed] (*)

    34(11.0.0.0.3) For greater certainty, council does not refuse an application for an amendment to a by-law passed under this section or a predecessor of this section or fail to make a decision on the application if it amends the by-law in response to the application, even if the amendment that is passed differs from the amendment that is the subject of the application.  2017, c. 23, Sched. 3, s. 10 (1).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsection: requested official plan amendments (s.22(7.0.2.1)

    Wood Bull Commentary

    This subsection clarifies that if council enacts an amending by-law that is different from the requested amendment, it is not considered a refusal or non-decision of the application for amendment.  The implication is that an applicant cannot appeal under subsection 34(11), but could appeal the passing of the by-law under subsection 34(19).  Unlike an appeal under s.34(11), an appeal under s.34(19) is not required to explain how an existing part or parts of the by-law affected by the amendment is inconsistent or does not conform with provincial and official plan policies (see s.34(11.0.0.0.4)  and s.34(19.0.1)).

  • 34(11.0.0.0.4) NOTICE OF APPEAL (*)

    34(11.0.0.0.4) A notice of appeal under subsection (11) shall,

    (a)  explain how the existing part or parts of the by-law that would be affected by the amendment that is the subject of the application are inconsistent with a policy statement issued under subsection 3 (1), fail to conform with or conflict with a provincial plan or fail to conform with an applicable official plan; and

    (b)  explain how the amendment that is the subject of the application is consistent with policy statements issued under subsection 3 (1), conforms with or does not conflict with provincial plans and conforms with applicable official plans.  2017, c. 23, Sched. 3, s. 10 (1).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsection: requested official plan amendments (s.22(8))

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.23 Appeal re amendment to zoning by-law where application refused; s.24 Appeal re amendment to zoning by-law where failure to make decision on application

    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) and (2) is consistent/conforms with the same matters identified in clause(b). 

    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 ss. 34(25) and 34(25.2)).  

    Therefore, the explanation required by subsection 34(11.0.0.04) is very important as it will be the key consideration when the grounds are considered by the Tribunal. 

    See Commentary on subsection 34(11.0.0.0.1) 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.).

  • 34(11.0.0.0.5) EXCEPTION [Second Appeal, Failure to Make Decision] (*)

    34(11.0.0.0.5)  Subsections (11.0.0.0.2) and (11.0.0.0.4) do not apply to an appeal under subsection (11) that concerns the failure to make a decision on an application in respect of which the municipality was given an opportunity to make a new decision in accordance with subsection (26.3).  2017, c. 23, Sched. 3, s. 10 (1).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Subsection (11.0.0.0.2) and (11.0.0.0.4) relate to the basis and notice of appeal. 

    Subsections 34(26.5) sets 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 a zoning by-law amendment that was appealed under subsection 34(11) or 34(19).

    Parallel subsection: requested official plan amendments (s.22(7.0.0.2)

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.23 Appeal re amendment to zoning by-law where application refused; s.24 Appeal re amendment to zoning by-law where failure to make decision on application

    Wood Bull Commentary

    This subsection refers to the municipality being given an opportunity to make a new decision in accordance with subsection (26.3). However, based on the wording of subsection 34(26.3) and the parallel provision of section 22 (s.22(7.0.0.2)), this appears to be a typographical error in the legislation and the reference should be to subsection (26.5).

    This subsection creates a distinction on a second appeal (where municipalities are given an opportunity to make a new decision under  subsections 34(26.1), 34(26.2) or 34(26.4)) between appeals from a failure to make a decision within the prescribed time periods (non-decision) and appeals of a refusal.

    For non-decisions, a second appeal is not required to address the grounds of appeal regarding consistency/conformity set out in subsection 34(11.0.0.0.2).   The powers of the Tribunal on such an appeal are set out subsections 34(26.6).

    For a refusal, a second appeal must still address the grounds of appeal set out in subsection 34(11.0.0.0.2).  The powers of the Tribunal on such an appeal are set out subsections 34(26.7), 34(26.9), and 34(26.10).

  • 34(11.0.0.1) USE OF DISPUTE RESOLUTION TECHNIQUES [If Appeal Filed]

    34(11.0.0.1) If an application for an amendment is refused as described in subsection (11) and a notice of appeal is filed under that subsection, the council may use mediation, conciliation or other dispute resolution techniques to attempt to resolve the dispute. 2015, c. 26, s. 26 (5).

  • 34(11.0.0.2) NOTICE AND INVITATION [Dispute Resolution]

    34(11.0.0.2) If the council decides to act under subsection (11.0.0.1),

    (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 considers appropriate,

    (ii) the applicant, if the applicant is not an appellant, and

    (iii) any other persons or public bodies that the council considers appropriate.  2015, c. 26, s. 26 (5).

  • 34(11.0.0.3) EXTENSION OF TIME

    34(11.0.0.3) When the council gives a notice under clause (11.0.0.2) (a), the 15-day period mentioned in clause (23) (b) is extended to 75 days.   2015, c. 26, s. 26 (5).

  • 34(11.0.0.4) PARTICIPATION VOLUNTARY

    34(11.0.0.4) Participation in the dispute resolution process by the persons and public bodies who receive invitations under clause (11.0.0.2) (b) is voluntary.  2015, c. 26, s. 26 (5).

  • 34(11.0.1) CONSOLIDATED HEARINGS ACT

    34(11.0.1) 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 application for an amendment to a by-law unless the council has made a decision on the application or the time period referred to in subsection (11) has expired.  2006, c. 23, s. 15 (5).

  • 34(11.0.2) REPEALED (*)

    34(11.0.2) Repealed: 2017, c. 23, Sched. 3, s. 10 (2).

    Legislative History

    Bill 139 repealed the following:

    Appeal to O.M.B.

    (11.0.2) The Municipal Board shall hear the appeal under subsection (11) and shall,

    (a) dismiss it;

    (b) amend the by-law in such manner as the Board may determine; or

    (c) direct that the by-law be amended in accordance with the Board’s order.

    Related Regulations

    O. Reg. 174/16 (as amended by O. Reg. 67/18): TRANSITIONAL MATTERS — GENERAL, s.23 Appeal re amendment to zoning by-law where application refused; s.24 Appeal re amendment to zoning by-law where failure to make decision on application

    Wood Bull Commentary

    The powers of the Tribunal on an appeal under subsection 34(11) are now found in subsections 34(26), (26.1).

  • 34(11.0.3) TIME FOR FILING CERTAIN APPEALS

    34(11.0.3) A notice of appeal under subsection (11) with respect to the refusal of an application shall be filed no later than 20 days after the day that the giving of notice under subsection (10.9) is completed.  2006, c. 23, s. 15 (5).

  • 34(11.0.4) RESTRICTED APPEALS, AREAS OF SETTLEMENT

    34(11.0.4) Despite subsection (11), there is no appeal in respect of all or any part of an application for an amendment to a by-law if the amendment or part of the amendment proposes to implement,

    (a) an alteration to all or any part of the boundary of an area of settlement; or

    (b) a new area of settlement.  2006, c. 23, s. 15 (5).

  • 34(11.0.5) RESTRICTED APPEALS, AREAS OF EMPLOYMENT

    34(11.0.5) Despite subsection (11), if the official plan contains policies dealing with the removal of land from areas of employment, there is no appeal in respect of all or any part of an application for an amendment to a by-law if the amendment or part of the amendment proposes to remove any land from an area of employment, even if other land is proposed to be added.  2006, c. 23, s. 15 (5).

  • 34(11.0.6) NO APPEAL RE INCLUSIONARY ZONING POLICIES

    34(11.0.6) Despite subsection (11), there is no appeal in respect of all or any part of an application for an amendment to a by-law if the amendment or part of the amendment proposes to amend or repeal a part of the by-law that gives effect to policies described in subsection 16 (4).  2016, c. 25, Sched. 4, s. 3 (2).

  • 34(11.1) WITHDRAWAL OF APPEALS

    34(11.1) If all appeals under subsection (11) are withdrawn, the Tribunal shall notify the clerk of the municipality and the decision of the council is final and binding or the council may proceed to give notice of the public meeting or pass or refuse to pass the by-law, as the case may be.  1999, c. 12, Sched. M, s. 25 (1); 2017, c. 23, Sched. 5, s. 82.

    Legislative History

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

 


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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