The Wood Bull Guides

Section 34, Subsections (19) to (19.8) [Appeal Rights: Passing of 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 that have been passed by Council.  

In keeping with previous amendments to the Planning Act that precluded a right to appeal in regard to specific subject matters, Bill 139 precludes appeal rights with respect to protected major transit station areas, except in limited circumstances (s.34(19.5)).  

Bill 139 also limits the possible grounds of all rights of appeal to considerations of policy implementation, not good planning per se. The appeals are restricted to issues of consistency or conformity with provincial plans, policy statements, and official plans.  The notices of appeal are required to explain the consistency/conformity issue. 


Click here to expand all subsections below or click on the individual subsection to expand/collapse the details for that subsection

  • 34(19) APPEAL TO L.P.A.T. (*)

    34(19) Not later than 20 days after the day that the giving of notice as required by subsection (18) is completed, 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. A person or public body who, before the by-law was passed, made oral submissions at a public meeting or written submissions to the council.

    3. The Minister.  2006, c. 23, s. 15 (10); 2017, c. 23, Sched. 3, s. 10 (4).

    Legislative History

    Bill 139 amended this subsection by deleting the requirement for the notice of appeal to set out "the objection to the by-law and the reasons in support of the objection" (while at the same time adding new subsection 34(19.0.1) which sets out three possible basis for appeal).    

    Bill 139 also amended this subsection by replacing the words "the Municipal Board" with the words "the Tribunal" and 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 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(19) 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 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(19) of the Planning Act.

    Related Regulations 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(19.0.1) BASIS FOR APPEAL (*)

    34(19.0.1) An appeal under subsection (19) may only be made on the basis that the by-law 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 an applicable official plan.  2017, c. 23, Sched. 3, s. 10 (5).

    Legislative History

    Bill 139 replaced this subsection, which read:

    Same

    If the appellant intends to argue that the by-law 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 an applicable official plan, the notice of appeal must also explain how the by-law is inconsistent with, fails to conform with or conflicts with the other document.

    Related Sections

    An explanation of the grounds of appeal is required to be included in the notice of appeal by subsection 34(19.0.2). 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 subsections:

    • official plans / official plan amendments exempt from approval (s.17(24.0.1))

    • official plans / official plan amendments not exempt from approval (s.17(36.0.1))

    Related Regulations Wood Bull Commentary

    Subsection 34(19.0.1) changes and limits the basis for appeals in regard to the passing of zoning by-law amendments.  Prior to Bill 139, the subject matter of a valid appeal was not restricted by statute as former subsection 34(19) simply required that the notice of appeal set out "the objection to the by-law and the reasons in support of the objection". 

    As a result of the Bill 139 amendments, appeals can only be made on the basis that the by-law:

    • 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 an applicable official plan.

    The Bill 139 amendment means that there is no longer any permissible ground of appeal which would allow a challenge to the planning merits per se of a newly enacted zoning by-law amendment, that is, its consistency with the principles of good planning. 

  • 34(19.0.2) NOTICE OF APPEAL (*)

    34(19.0.2)  A notice of appeal under subsection (19) shall explain how the by-law 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 an applicable official plan.  2017, c. 23, Sched. 3, s. 10 (5).

    Legislative History

    This subsection was introduced through Bill 139.

    Related Regulations 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 part of the by-law to which the notice relates, 

    • 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  municipality’s official plan.

    Subsection 34(19.02) requires that the notice do more than simply allege inconsistency/non-conformity/conflict; rather, an explanation must support the allegation. 

    If the inconsistency/non-conformity/conflict alleged and explained 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(19.02) is very important as it will form a key consideration when the grounds are considered by the Tribunal. 

    See Commentary on subsection 34(19.01) 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.).

  • 34(19.1) NO APPEAL RE SECOND UNIT POLICIES

    34(19.1) Despite subsection (19), there is no appeal in respect of the parts of a by-law that give effect to policies described in subsection 16 (3), including, for greater certainty, no appeal in respect of any requirement or standard relating to such policies.  2016, c. 25, Sched. 4, s. 3 (3).

  • 34(19.2) EXCEPTION RE MINISTER

    34(19.2) Subsection (19.1) does not apply to an appeal by the Minister.  2016, c. 25, Sched. 4, s. 3 (3).

  • 34(19.3) NO APPEAL RE INCLUSIONARY ZONING POLICIES

    34(19.3) Despite subsection (19), there is no appeal in respect of the parts of a by-law that give effect to policies described in subsection 16 (4), including, for greater certainty, no appeal in respect of any condition, requirement or standard relating to such policies.  2016, c. 25, Sched. 4, s. 3 (4)).

  • 34(19.3.1) MATTERS REFERRED TO IN S. 34 (1)

    34(19.3.1) Despite subsection (19.3), there is an appeal in respect of any matter referred to in subsection (1) even if such matter is included in the by-law as a measure or incentive in support of the policies described in subsection 16 (4).  2016, c. 25, Sched. 4, s. 3 (5); 2017, c. 23, Sched. 3, s. 10 (6). 

    Legislative History

    Bill 139 amended this subsection to change the reference from "in subsection 34 (1)” to “in subsection (1)”.

  • 34(19.4) EXCEPTION RE MINISTER

    34(19.4) Subsection (19.3) does not apply to an appeal by the Minister.  2016, c. 25, Sched. 4, s. 3 (4)

  • 34(19.5) NO APPEAL RE PROTECTED MAJOR TRANSIT STATION AREA – PERMITTED USES, ETC. (*)

    34(19.5)  Despite subsections (19) and (19.3.1), and subject to subsections (19.6) to (19.8), there is no appeal in respect of,

    (a)  the parts of a by-law that establish permitted uses or the minimum or maximum densities with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15) or (16); or

    (b) the parts of a by-law that establish minimum or maximum heights with respect to buildings and structures on lands in a protected major transit station area that is identified in accordance with subsection 16 (15) or (16).  2017, c. 23, Sched. 3, s. 10 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Protected major transit station areas are identified in official plans of:

    Wood Bull Commentary

    Subject to the limitations and exceptions set out in subsections 34(19.6) to 34(19.8), there is no appeal of the parts of a bylaw that establish permitted uses, minimum or maximum densities, or minimum or maximum heights with respect to buildings and structures on lands in a protected major transit station area.

    The restriction in subsection 34(19.5)(b) does not apply where the maximum permitted height would result in development that does not meet the minimum required density for the parcel (s.34(19.7)).

    With respect to a lower-tier municipality's by-law, the restriction only applies if the municipality's official plan includes all of the required policies described in subsection 16(16)(b) for a protected major transit station area (s.34(19.6)).

    The restriction on appeals in this subsection does not apply to the Minister (s.34(19.8)).

    This subsection is silent as to whether appeals relating to other standards, such as setbacks, building depths, and landscaping, with respect to buildings and structures on lands in a protected major transit station area would be permitted.  Any appeal would have to be made on the basis set out in subsection 34(19.0.1).

  • 34(19.6) SAME, BY-LAW OF A LOWER-TIER MUNICIPALITY (*)

    34(19.6) Subsection (19.5) applies to a by-law of a lower-tier municipality only if the municipality’s official plan contains all of the policies described in subclauses 16 (16) (b) (i) and (ii) with respect to the protected major transit station area.  2017, c. 23, Sched. 3, s. 10 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    If an upper-tier municipality's official plan identifies a protected major transit station area, the lower-tier municipality's official plan is required to identify the uses of land and of buildings and structures, and the minimum densities for buildings and structures in the protected major transit station area (s.16(16)(b)).

    Wood Bull Commentary

    The restriction on appeal rights in subsection 34(19.5) applies only if the lower-tier municipality's official plan includes all of the required policies described in subsection 16(16)(b).

  • 34(19.7) EXCEPTION [To Appeal Maximum Height] (*)

    34(19.7) Clause (19.5) (b) does not apply in circumstances where the maximum height that is permitted with respect to a building or structure on a particular parcel of land would result in the building or structure not satisfying the minimum density that is required in respect of that parcel.  2017, c. 23, Sched. 3, s. 10 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsection:

    • exception to the appeal restriction for official plan policies pertaining to protected major transit station areas (s.17(36.1.6))

    Wood Bull Commentary

    The parts of a by-law that establish minimum or maximum heights for buildings and structures on lands in a protected major transit station area may be appealed where the maximum permitted height would result in development that does not meet the minimum required density for that parcel.  Any such appeal may only be made on the basis set out in subsection 34(19.0.1).

  • 34(19.8) EXCEPTION RE MINISTER [To Appeal Protected Major Transit Station Area] (*)

    34(19.8) Subsection (19.5) does not apply to an appeal by the Minister.  2017, c. 23, Sched. 3, s. 10 (7).

    Legislative History

    This subsection was introduced by Bill 139.

    Related Sections

    Parallel subsection:

    • exception for Minister to appeal official plan policies pertaining to protected major transit station areas (s.17(36.1.7))

    Wood Bull Commentary

    The restriction on appeals relating to the parts of a by-law that establish permitted uses or minimum or maximum densities or heights with respect to buildings and structures on lands in a protected major transit station area does not apply to the Minister.

 


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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