2008

The Application of Natural Heritage Policies and Legislation by the Ontario Municipal Board January 2004-January 2008

Research and Report by Elke Meyfarth O’Hara, School of Planning, University of Waterloo

Prepared for the Environmental Commissioner of Ontario, March 2008

Introduction

Ontario operates under a policy-led planning system. Land use planning on private land is conducted under authority of the Planning Act, which is provincial legislation that sets the rules for land use in the province. The Provincial Policy Statement (PPS) provides the broad policy framework that establishes direction on matters of provincial interest. Although the province sets legislation and policies, planning decisions for private land are made at the municipal level. Municipalities are responsible for implementing the Planning Act via their Official Plans, zoning by-laws and development applications. The Ontario Municipal Board (OMB) is an independent adjudicative tribunal that is responsible for settling disputes over land use planning and other municipal issues. The OMB hears appeals and applications on land use planning under the Planning Act and other legislation. The OMB is responsible for interpreting and applying policies and legislation that concern natural heritage issues and thus OMB decisions have important consequences for natural heritage protection in Ontario.

Wilkinson, in an analysis of the application of the Natural Heritage Section of the PPS by the OMB between the years 1997 and 2000, concluded that the Natural Heritage Section was generally applied in a thoughtful and effective manner by most Ontario Municipal Board members (Wilkinson 2002: 159). Among his findings, however, he noted that the involvement of government agencies was minimal and their lack of direct involvement in the planning process was sometimes a factor cited by OMB members who ruled against natural heritage protection. Wilkinson also found that a significant variable in the application of the Natural Heritage Section was the presiding OMB member.

Ontario Nature expanded upon Wilkinson’s analysis of nineteen OMB decisions and presented a review of 71 cases with significant natural heritage issues that were decided by the OMB between May 1996 and July 2003. The report gave support to the noted widespread dissatisfaction with OMB decisions in the naturalist community as it revealed that defenders of natural heritage had a 30 per cent success rate while developers had a 70 per cent success rate in winning the appeal (Ontario Nature 2003: 7). The report suggests a number of factors involved in this success percentage, including:

  • Weakness of OMB support and guidance for potential appellants
  • Weakness in cases presented by natural heritage defenders
  • Imbalance in resources between defenders of natural heritage and development interests
  • Lack of clarity in the PPS with respect to natural heritage, and whether or not decisions must be consistent with provincial policy
  • Inability of some Official Plans to adequately protect natural heritage
  • Variation in understanding and attitude toward natural heritage among OMB hearing officers
  • Too many cases proceed to the OMB before proper municipal review, thus the resources of natural heritage defenders are “spread too thin”.

This study builds upon the work of Wilkinson and Ontario Nature. The focus here is on the application and interpretation of the natural heritage provisions of the Provincial Policy Statement (PPS) 2005 by the OMB. The PPS, issued under the authority of Section 3 of the Planning Act, sets out overall policy direction on matters of provincial interest in Ontario. A new PPS was implemented on March 1, 2005, replacing the previous PPS (1996, amended 1997). The current PPS requires that planning decision makers shall be consistent with the PPS 2005, whereas they were previously required to have regard to the PPS 1997. Shall be consistent with is a stronger test than have regard to and is thus intended to be a higher policy implementation standard. This report will look at whether the PPS 2005 has improved clarity with regard to natural heritage decisions.

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