The Wood Bull Guides

Section 38 [Interim Control By-law]

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

Bill 139 removed the rights of any person or public body to appeal the passing of an interim control by-law.  Only the Minister has a right to appeal.  Persons and public bodies may only appeal a by-law that extends the time period applying to an interim control by-law.


 

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

  • 38(1) INTERIM CONTROL BY-LAW

    38(1) Where the council of a local municipality has, by by-law or resolution, directed that a review or study be undertaken in respect of land use planning policies in the municipality or in any defined area or areas thereof, the council of the municipality may pass a by-law (hereinafter referred to as an interim control by-law) to be in effect for a period of time specified in the by-law, which period shall not exceed one year from the date of the passing thereof, prohibiting the use of land, buildings or structures within the municipality or within the defined area or areas thereof for, or except for, such purposes as are set out in the by-law.  R.S.O. 1990, c. P.13, s. 38 (1).

  • 38(2) EXTENSION OF PERIOD BY-LAW IN EFFECT

    38(2) The council of the municipality may amend an interim control by-law to extend the period of time during which it will be in effect, provided the total period of time does not exceed two years from the date of the passing of the interim control by-law.  R.S.O. 1990, c. P.13, s. 38 (2).

  • 38(3) NOTICE OF PASSING OF BY-LAW

    38(3) No notice or hearing is required prior to the passing of a by-law under subsection (1) or (2) but the clerk of the municipality shall, in the manner and to the persons and public bodies and containing the information prescribed, give notice of a by-law passed under subsection (1) or (2) within thirty days of the passing thereof.  R.S.O. 1990, c. P.13, s. 38 (3); 1994, c. 23, s. 23 (1).

    Related Regulations

    O. Reg. 545/06: ZONING BY-LAWS, HOLDING BY-LAWS AND INTERIM CONTROL BY-LAWS s.9 re Notice of passing of interim control by-law or extension

  • 38(4) APPEAL TO L.P.A.T. RE BY-LAW PASSED UNDER SUBS. (1) (*)

    38(4) The Minister may, within 60 days after the date of the passing of a by-law under subsection (1), appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection.  2017, c. 23, Sched. 3, s. 12 (1)

    Legislative History

    Bill 139 repealed subsection (4) and replaced it with subsections (4) and (4.1).  Subsection (4) read as follows prior to Bill 139:

    Appeal to O.M.B.

    (4) Any person or public body to whom notice of a by-law was given under subsection (3) may, within sixty days from the date of the passing of the by-law, appeal to the Municipal Board by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection.

    Related Regulations

    O. Reg. 174/16: TRANSITIONAL MATTERS — GENERAL, s.16:

    Appeal re interim control by-law

    16. An interim control by-law, including any amendment to extend the period of time during which it will be in effect, shall be continued and disposed of in accordance with subsection 38 (4) of the Act as it read on April 2, 2018 and as if subsection 38 (4.1) of the Act was not in force if it is passed before April 3, 2018. O. Reg. 67/18, s. 4.

    Wood Bull Commentary

    Prior to Bill 139, any person or public body who was given notice of the passing of an interim control by-law had a right to appeal.  Now, for any interim control by-law passed on or after 3 April 2018, only the Minister has a right to appeal the passing of an interim control by-law.  Appeal rights of any person or public body are limited to the passing of a by-law extending the period of the interim control by-law.  See subsection 38(4.1).

  • 38(4.1) APPEAL TO L.P.A.T. RE BY-LAW PASSED UNDER SUBS. (2) (*)

    38(4.1) Any person or public body who was given notice of the passing of a by-law under subsection (2) may, within sixty 60 days from after the date of the passing of the by-law, appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection.  2017, c. 23, Sched. 3, s. 12 (1).

    Legislative History

    Bill 139 repealed subsection (4) and replaced it with subsections (4) and (4.1).  Subsection (4) read as follows prior to Bill 139:

    Appeal to O.M.B.

    (4) Any person or public body to whom notice of a by-law was given under subsection (3) may, within sixty days from the date of the passing of the by-law, appeal to the Municipal Board by filing with the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection.

    Related Regulations

    O. Reg. 174/16: TRANSITIONAL MATTERS — GENERAL, s.16:

    Appeal re interim control by-law

    16. An interim control by-law, including any amendment to extend the period of time during which it will be in effect, shall be continued and disposed of in accordance with subsection 38 (4) of the Act as it read on April 2, 2018 and as if subsection 38 (4.1) of the Act was not in force if it is passed before April 3, 2018. O. Reg. 67/18, s. 4.

    Wood Bull Commentary

    Prior to Bill 139, any person or public body who was given notice of the passing of an interim control by-law had a right of appeal.  Now, the right to appeal of any person or public body who received notice of the passing of an interim control by-law is limited to the passing of a by-law extending the period of the interim control by-law.  Apart from the Minister, appeal rights do not exist with respect to the passing of an interim control by-law in the first instance.

  • 38(5) APPLICATION (*)

    38(5) If a notice of appeal is filed under subsection (4) or (4.1), subsections 34 (23) to (26), as they read on the day before subsection 12 (2) of Schedule 3 to the Building Better Communities and Conserving Watersheds Act, 2017 comes into force, apply with necessary modifications to the appeal.  1996, c. 4, s. 23; 2017, c. 23, Sched. 3, s. 12 (2).

    Legislative History

    Bill 139 amended this subsection by adding the reference to subsection (4.1) and adding the text "as they read on the day before subsection 12 (2) of Schedule 3 to the Building Better Communities and Conserving Watersheds Act, 2017 comes into force".

    Related Sections

    The appeal process for zoning by-laws, as set out in Planning Act subsections 34(23) to (26) prior to Bill 139, applies to appeals of interim control by-laws.

    Related Statutes

    All references to the Ontario Municipal Board in the above noted applicable subsections of the Planning Act are deemed to be a reference to the Local Planning Appeal Tribunal (s.2(2) of the Local Planning Appeal Tribunal Act, 2017).

    Wood Bull Commentary

    The appeal framework for interim control by-laws is set out in subsections 34(23) through 34(26).  Bill 139 amended this subsection to allow for the process of section 34 prior to Bill 139 to continue to apply to appeals of interim control by-laws.

    In contrast to the appeal provisions introduced through Bill 139 for zoning by-laws, for appeals to interim control by-laws, the following applies: 

    • The basis for appealing is not limited to the by-laws being inconsistent with a policy statement, non-conforming/conflicting with a provincial plan or non-conforming with an applicable official plan.  Appeals can be filed based on broader land use planning grounds, which must be set out in the notices of appeal. 

    • Appeals are not subject to the double-appeal mechanism.  On an appeal, the Tribunal continues to have the power to (i) dismiss the appeal or (ii) allow the appeal in whole or part and repeal/amend the by-law or direct council to do so.

  • 38(6) WHEN PRIOR ZONING BY-LAW AGAIN HAS EFFECT

    38(6) Where the period of time during which an interim control by-law is in effect has expired and the council has not passed a by-law under section 34 consequent on the completion of the review or study within the period of time specified in the interim control by-law, or where an interim control by-law is repealed or the extent of the area covered thereby is reduced, the provisions of any by-law passed under section 34 that applied immediately prior to the coming into force of the interim control by-law again come into force and have effect in respect of all lands, buildings or structures formerly subject to the interim control by-law.  R.S.O. 1990, c. P.13, s. 38 (6).

  • 38(6.1) WHERE BY-LAW APPEALED

    38(6.1) If the period of time during which an interim control by-law is in effect has expired and the council has passed a by-law under section 34 consequent on the completion of the review or study within the period of time specified in the interim control by-law, but there is an appeal of the by-law under subsection 34 (19), the interim control by-law continues in effect as if it had not expired until the date of the order of the Tribunal or until the date of a notice issued by the Tribunal under subsection 34 (23.1) unless the interim control by-law is repealed.  1994, c. 23, s. 23 (3); 2017, c. 23, Sched. 5, s. 95.

    Legislative History

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

  • 38(7) PROHIBITION

    38(7) Where an interim control by-law ceases to be in effect, the council of the municipality may not for a period of three years pass a further interim control by-law that applies to any lands to which the original interim control by-law applied.  R.S.O. 1990, c. P.13, s. 38 (7).

  • 38(8) APPLICATION OF S. 34 (9)

    38(8) Subsection 34 (9) applies with necessary modifications to a by-law passed under subsection (1) or (2).  R.S.O. 1990, c. P.13, s. 38 (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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