Ontario Planning Act 2010 Review
Ontario’s land use planning system shapes how our communities develop and what activities may take place on the broader landscape. At the core of this system is the Planning Act, which is the primary land use planning law that affects municipalities and privately-owned lands. Under the authority of this law, detailed policy directions are set forth in the Provincial Policy Statement (PPS). Its importance, in how it shapes both communities and the natural landscape, cannot be understated.
Under the Ontario government’s one-window planning system, the Ministry of Municipal Affairs and Housing (MMAH) is chiefly responsible for the PPS. However, a variety of other ministries, such as the Ministry of Natural Resources (MNR), the Ministry of the Environment (MOE), the Ministry of Transportation (MTO), and the Ministry of Energy and Infrastructure (MEI) play a supporting role. They are also responsible for many of the detailed policies that help to implement the PPS.
The PPS provides broad direction on how land use planning should occur and outlines matters of provincial interest. It provides direction for land use patterns, forms of development, the management of some natural resources, and other issues, such as natural hazards. From an environmental perspective, the PPS is very important; it contains planning direction for woodlands, wetlands, wildlife habitat, air quality, and the quality and quantity of water. The PPS also plays a role in governing such land uses as aggregate extraction, agriculture, transportation, and other types of infrastructure. The Planning Act stipulates that decisions made by planning authorities, such as the directions set out in official plans, “shall be consistent with” the PPS. Municipal official plans must be updated every five years.
The current PPS came into effect on March 1, 2005. The Planning Act requires that the Minister of Municipal Affairs and Housing begin a review of the PPS every five years. The next scheduled public review of this land use policy will begin in March 2010. In the years that follow, the next major milestone for potential changes to Ontario’s land use planning system will occur in 2015 when the Oak Ridges Moraine Conservation Plan, the Niagara Escarpment Plan, and the Greenbelt Plan are reviewed; each of those plans are governed by separate laws.
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Is Ontario’s Planning System Responsive to Change?
A fundamental public right exists under the Environmental Bill of Rights, 1993 (EBR) that allows Ontarians to request that a prescribed ministry amend its policies, regulations, or legislation in order to better protect the environment. Applications for review are an important legal tool for the public to express their concerns about how the government is addressing its responsibilities. However, under the EBR, a ministry may legitimately refuse to undertake such a review on several grounds, including, for example, if the policy in question was approved, amended, or reviewed within the last five years.
Over the last decade, 28 applications for review have been submitted by the public that directly or indirectly requested changes to the PPS. In every case, MMAH denied these requests, either because the PPS had already been reviewed within the last five years or it was in the process of being reviewed. In fact, MMAH has denied every single EBR application that it has ever received on any subject matter. Despite the nature of their mandates and their obvious role in land use planning issues, other ministries often deny these EBR applications by asserting that they are not directly responsible for the PPS. This handling of the concerns raised by Ontarians does not constitute good public policy.
Handing of Applications for Review Under the Environmental Bill of Rights, 1993 That Requested Changes Related to the Provincial Policy Statement
| Ministry | Applications Submitted | Denied | Undertaken |
|---|---|---|---|
| Ministry of Municipal Affairs and Housing (MMAH) | 16 | 16 | 0 |
| Ministry of Natural Resources (MNR) | 7 | 7 | 0 |
| Ministry of the Environment (MOE) | 5 | 2 | 3 |
These EBR applications have raised a wide variety of concerns about Ontario’s land use planning system. Many of these applications centre on the need to improve the requirements for environmental protection. Other applications expressed concerns that government policy changes are necessary to more broadly apply sustainable planning direction to issues such as infrastructure and transportation. These concerns also are reflected in the large number of telephone calls, letters, and e-mails that the ECO receives on these issues from the public.
In this Annual Report, the ECO highlights some of the concerns that have been raised by the public over the last decade in applications for review under the EBR. In each case, MMAH denied the review. The ECO hopes that these types of concerns about Ontario’s land use planning system are carefully weighed in the next review of the PPS that begins in March 2010.
Water Quality and Quantity: Moraines
Over the last decade, the ECO has received numerous EBR applications requesting enhanced protection for moraines in southern Ontario from development pressures. Most of these applications dealt specifically with the need to protect the moraines’ ecological and hydrogeological features, such as their role in maintaining landscape connectivity or their functions as groundwater and recharge areas.
In March 2000, members of the public submitted an EBR application requesting the long-term protection for the Oak Ridges Moraine. The applicants were concerned that “existing land-use planning laws and policies are inadequate to safeguard the ecological integrity” of this important geographic feature. In response, MMAH denied this request, stating that “the guidelines, policy and legislation comprising the current land use planning system in Ontario provides that protection.” In our 2000/2001 Annual Report, the ECO concluded that the ministry’s reasons for denying the applications were inappropriate as compelling evidence was presented that existing land use policies were not adequately protecting the moraine, new scientific and technical information was available, and that development pressure was harming the environment. In that report, the ECO recommended that, MMAH, in consultation with other ministries and the public, develop a comprehensive long-term protection strategy for the Oak Ridges Moraine.
Ironically, within a year of MMAH denying the EBR applications, the Oak Ridges Moraine Protection Act, 2001 was passed, establishing a six-month development moratorium on the moraine. The government then passed the Oak Ridges Moraine Conservation Act, 2001 and finalized the Oak Ridges Moraine Conservation Plan in April 2002. The plan provides land use and resource management planning direction on how to protect the ecological and hydrological features of the moraine, beyond the general directions found in the PPS.
In 2006 and 2007, a new series of EBR applications requested new policy or legislation to protect both the Waterloo and the Paris Galt Moraines. Similar to the Oak Ridges Moraine case, the applicants raised concerns about the damaging impact of development on groundwater and drinking water. Additionally, the applicants stated that the protection of the Paris Galt Moraine groundwater recharge areas is critical as “growth areas will shortly encroach into the moraine” because of the direction of the Places to Grow Act, 2005 which effectively supersedes the PPS.
MMAH denied these EBR applications, stating that the PPS and the Greenbelt Act, 2005 (which only applies to a small portion of one of the moraines) provide for sufficient protection of both natural heritage features and water resources. Moreover, the ministry also denied these requests on the basis that the PPS had been reviewed within the last five years. In stark contrast, MOE agreed to undertake a review based on the applicants’ concerns, but said neither the Clean Water Act, 2006 nor the PPS would be included in the review. The ECO commends MOE for taking the applicants’ concerns seriously. In May 2009, MOE completed their review of these EBR applications; the ECO will report on them in a future annual report.
Natural Heritage
The ECO has received many EBR applications requesting the enhanced protection of natural heritage features. Two applications raised concerns about how natural heritage features, such as fish habitat are considered in the government’s one-window planning system, noting that MMAH allows small structures to be built close to water’s edge contrary to MNR’s recommended set-backs. The applications were denied by MMAH and MNR.
Other EBR applications called for the review of the PPS and how it addresses wetlands. Although the PPS restricts development and site alteration in wetlands evaluated by MNR as “significant,” the applicants stated that these policies are essentially meaningless as development is being approved in wetlands that have not yet been evaluated by MNR.
Additionally, the applicants provided evidence that less than one per cent of wetlands in Haliburton Country had been evaluated for their significance under the PPS. Although MMAH and MNR both denied this EBR application, the ECO found that there was compelling evidence that the environment was being harmed.
These EBR applications highlight the fact that the PPS allows development and site alteration in wetlands not evaluated as “significant.” In essence, there are two main hurdles impeding the protection of wetlands. Wetlands must first be evaluated and determined by MNR to be significant. The municipality must then designate the wetland as provincially significant in its official plan for any actual protections from development to take effect. The ECO previously observed,
- Decision-makers, such as municipalities, the Ontario Municipal Board, conservation authorities and other ministries are unlikely – and to some extent unable – to use tools that they have to protect wetlands unless MNR has carried out an evaluation and identification. In other situations, municipalities have been reluctant to designate wetlands in their official plans even after they have been identified by the province, therefore, the current system is not resulting in the level of protection for wetlands to which the government has committed.
The City of Ottawa provides an example of wetland protection hurdles in the current land use planning system. In response to a development application in 2004, a contracted wetland evaluator identified the Goulbourn Wetland Complex on the edge of the city as provincially significant, as later confirmed by MNR in 2005. Landowners objected to the wetland status because of MNR’s evaluation process, asserting that the wetlands formed because of poorly maintained drains and that the designation would lower property values. In response to a landowner petition, the city declared a creek in the Goulbourn Wetlands as a municipal drain under the Drainage Act and agreed in 2006 to drain the land to “pre-existing conditions.” MNR recently evaluated wetlands in the City of Ottawa and identified 3,600 hectares of new provincially significant wetlands and re-confirmed the status of the Goulbourn Wetlands. MNR then requested the city appropriately designate these lands within their official plan. In January 2008, the city tabled amendments to its official plan, including the designation of the newly identified significant wetlands with a few exceptions, such as the Goulbourn Wetlands. The City of Ottawa proposes to create a special policy for these wetlands, maintaining their current status unless an application for land use change is received, at which time the area will be subject to the city’s wetland policies. In other words, development would not be allowed in the wetlands but site alteration would be. The wetlands in question will be re-evaluated fve years after the drainage improvements are completed – essentially when the wetlands are drained of their provincially significant status.
Aggregate Resources
Conflicts between mineral aggregate extraction and other land uses have come to the attention of the ECO through EBR applications, as well as less formal avenues, such as letters and telephone calls. These issues include:
- the conflict in the PPS between protecting both mineral aggregate and natural heritage features for long-term use;
- the objective of making aggregates available as close to markets as possible;
- the need for a new mechanism to evaluate applications for aggregate operations and to screen them out if necessary; and
- the need for a provincial aggregate conservation policy.
As an example, members of the public submitted an EBR application that raised concerns about a proposed quarry: the site had significant natural heritage features, the proposed operation was incompatible with local land uses set out in the municipal official plan, and it was in close proximity to the recharge area for local municipal wellheads. The applicants were also concerned with the seemingly pre-determined outcome of aggregate applications (i.e., few are refused) and suggested the government should adopt a pre-screening process for sites to determine any land use conflicts (such as with natural features) upfront. MMAH and MNR denied this EBR application.
The ECO disagreed with these EBR applications being denied, and identified several key problems that exist with aggregate licensing and extraction in Ontario. The ECO’s concerns included: the process essentially involves a pre-determined outcome; natural features are often destroyed; and the public faces serious hurdles in being able to meaningfully participate in the decision-making process. In our 2006/2007 Annual Report, the ECO recommended,
- the provincial government reconcile its conflicting priorities between aggregate extraction and environmental protection. Specifically, the province should develop a new mechanism within the ARA approvals process that screens out, at an early stage, proposals conflicting with identified natural heritage or source water protection values.
ECO Comment
Insufficient weight is given to environmental planning and protection in Ontario’s land use planning system. This has been a long-standing concern of the ECO in numerous Annual Reports to the Ontario Legislature. Nevertheless, the need to address the degradation of the environment is, perhaps, more urgent than ever. Such laws as the Oak Ridges Moraine Conservation Act, 2001, the Greenbelt Act, 2005, and the Lake Simcoe Protection Act, 2008 reflect a disturbing trend to protect notable natural heritage features on an individual basis rather than implement broader-based safeguards under the PPS. This tendency to protect by exception on a regionally specific basis rather than as a rule is both reactionary and problematic. In our 2007/2008 Annual Report, the ECO stated,
- Natural features of the landscape – such as large moraines with significant hydrologic functions – should be used as the starting point to guide local land use planning decisions. The current land use planning system gives insufficient weight to environmental concerns, and it does not adequately empower planning authorities to restrict specific forms of development where they are ecologically inappropriate.
These broader problems become readily apparent at a local scale. The ECO believes that the PPS provides insufficient measures to prevent the continued degradation and loss of natural features, such as wetlands, woodlands, and the habitat of native species. Further, the supporting policies that guide natural heritage protection, such as the Natural Heritage Reference Manual and the Ontario Wetland Evaluation System, are dated. Both these documents pre-date the 2005 PPS and do not necessarily reflect current environmental realities.
The protection of wetlands hinges on whether MNR first evaluates them as being provincially significant; then they must overcome a second hurdle and be designated in municipal official plans. However, MNR’s effort to evaluate wetlands has been inconsistent across the province, from the evaluation of less than one per cent of the wetlands in Haliburton County to only some 40 per cent in the City of Ottawa. The province-wide effectiveness of the PPS cannot be judged as MMAH does not track the extent of wetland designation in municipal official plans.
If such deficiencies exist for the protection of wetlands, the problem is much worse for significant woodlands. Approximately 80 per cent of southern Ontario’s original woodland cover has been lost. The PPS provides an open-ended definition of significant woodlands, and lacks an explicit requirement to protect significant woodlands, essentially leaving it up to municipalities to develop their own criteria beyond the general direction that is provided. Unlike its screening of wetlands, MNR has no formal role in evaluating or identifying significant woodlands. The result is that, typically, only larger municipalities with ample planning staffs devote more than a passing mention to addressing significant woodlands in their official plans. Moreover, MMAH does not track the actual number of significant woodlands designated in municipal official plans. MMAH interprets its role as only checking to see if official plans give mention to significant woodlands, not whether any are actually protected. The ECO does not believe the PPS provides sufficient safeguards to protect the province’s significant woodlands.
| Recommendation 1:
The ECO recommends that MMAH’s 2010 review of the PPS introduce effective mechanisms for protecting significant woodlands, including mechanisms for woodland evaluation, designation, tracking and reporting. |
A similar problem arises with respect to efforts to evaluate the effectiveness of the PPS’s measures for protecting significant wildlife habitat, as well as the significant habitat of threatened and endangered species. MMAH does not track the area of lands that are set aside as significant wildlife habitat. Protection for significant wildlife habitat is dealt with on a development-specific basis, functioning on an almost entirely reactionary basis. As such, the PPS provides negligible comprehensive protection for species at risk. Given that MMAH casts the PPS as a key mechanism to address the loss of Ontario’s biodiversity, these facts are not at all reassuring.
Ten years ago, the ECO recommended that MMAH monitor whether the PPS is having the desired effects, report this information to the public, and – if these policies are not effective – reconsider the provincial role in planning. In April 2009, MMAH finally released a draft set of indicators to assess the performance and effectiveness of the PPS. To a large extent, these draft indicators only determine how “consistent” official plans are with the PPS, rather than assess whether provincial direction is achieving an actual on-the-ground effect in conserving natural heritage. The ECO will review these indicators in a future annual report.
MMAH states that there is “no implied priority” in the issues that the PPS addresses. However, it quickly becomes evident to observers of Ontario’s planning system that there are indeed priorities, and they do not favour stemming the tide of extractive and destructive land uses. This short-sighted approach undermines the resilience of the natural environment that communities value and depend on. Measures to conserve and protect significant ecological features and functions must become an implicit and fundamental part of the planning system. Failing to shift the broader planning direction to a more enlightened approach will have long-term ecological repercussions. The choices that are made now will be glaringly apparent for the generations to come and those generations will have to bear the burden of the poor decisions that are made today.
Cost awards and SLAPP: Techniques used to chill public participation in planning decisions
| This is an article from the 2008/09 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2009. "Reforming Land Use Planning." Building Resilience, ECO Annual Report, 2008-09. Toronto, ON : Environmental Commissioner of Ontario. 17-23.
