LAND USE PLANNING

I. Introduction

1. Introduction

  • governments like to plan in advance;the province must decide how much say it wants in the matter (major roads are connected to highways, etc.)
  • tax influences urban form (lot levies paid by developers as part of an approval requirement)
  • private law also plays an influencing role (nuisance, contractual servitudes & building schemes). Disadvantages: tend to perpetual duration, not very flexible with change, difficult to enforce, balancing of public & private interests is difficult. Advantages: the parties CAN set & control their own rules and not subject to the whims of governments, individuals can enforce them (don’t have to depend on municipalities, which have discretion).
  • HERE: looking at public law decisions relating to use & activities on land, focusing on how to dissuade or regulate how private individuals use land (public control of private land). Also, expropriation (moving private land to public for usage as a park, hospital, etc.) raises questions such as compensation and to what extent a municipality can make land cheaper to acquire through zoning changes.

Land

2. Constitutional Framework

Division of Powers

  • federal government & its agencies [National Capital Commission]
  • provincial governments & their agencies [Ontario Municipal Board, Commission de protection du territoire agricole du Québec.]
  • regional governments [Montreal Urban Community, Regional Municipality of Ottawa-Carleton]
  • municipal government [City of Montreal, City of Ottawa]

Federal Government

Federal Agencies

Provincial Government

Provincial Agencies

[OMB, CPTAQ]

Local Governments

RegionalMunicipal

[MUC][Sutton]

  • 2 constitutionally recognized governments: federal & provincial. Each can set up agencies to do things. [Municipalities draw their authority from provincial legislation & NOT the constitution.]
  • Constitution Act 1867, s. 92(8)Municipal Institutions in the Province [authority to set up institutions & procedure]. Any functions that they do must be authorized under another power.
  • Constitution Act 1867, ss. 92(13)&(16)Property & Civil Rights in the Province; Generally all Matters of a merely local or private Nature in the Province [principle sources of land use planning].
  • by & large, land use is a provincial concern, but activities can raise issues of movement into federal
    jurisdiction. The municipality can only do what it is delegated to do.

Hamilton Harbour Commissioners v. City of Hamilton (1978), 91 D.L.R. 3d 353 (Ont. C.A.)

1.Facts: Plaintiff federal delegate had wide powers & responsibilities for development, improvement, maintenance & protection of harbour. They had absolute jurisdiction over land uses for lands they owned to be developed for shipping & navigation or harbour purposes. For privately owned land, they had jurisdiction to enact by-laws controlling the use of these to the extent they might interfere with navigation & shipping in the harbour, but could not affect the proprietary rights of private landowners. The City passed by-laws regulating use & development of harbour lands.

2.Issues: Do the Commissioners, acting under the authority of federal legislation, or the City, under provincial legislation, have legislative authority with respect to land-use control within a harbour?

3.Holding: Both.

4.Ratio: Griffiths J., with whom Houlden, J.A. of the Court of Appeal agreed: “The establishment of the Commissioners to administer the harbour…does not thereby constitute the harbour a ‘federal enclave’ immune from federal legislation...land-use control within a harbour has both provincial & federal aspects…Only if conflict arises with respect to the use of a parcel of land…will the paramountcy of the federal power cause the operation of the by-law of the City to be suspended.”

“The present land uses by the Commissioners…are not affected by the by-laws. Lands owned by the Commissioners and not presently being used for harbour purposes are legitimate objects of the land-use controls of the City and the zoning by-laws only become suspended when they operate to prevent or interfere with the right of the Commissioners to develop such lands for shipping and navigation.”

“There is no present conflict between the official plan amendments and the zoning by-laws, and the use & development of the land by the Commissioners within the limits of the Hamilton harbour, and the claim of the Commissioners for a declaration that the by-laws…are ultra vires, is dismissed.”

Glenn: there was dual aspect. We must take the subject & give it a general label/classification. Where in ss.91 & 92 does it fit? If there were a conflict here, it would be resolved by paramountcy.

Jurisdiction of Administrative Tribunals

  • s.96 gives the feds the authority to appoint judges to most important courts. This has been interpreted to have a CONTENT aspect. Implicit therefore is the idea that these courts must continue to have an important area of jurisdiction [provincial governments cannot set up their own judicial bodies & give to them “s.96 functions”] This is important to land use with things like residential tenancy boards, etc.even if it is administratively efficient to set up boards to decide everything related to its area of expertise, you CANNOT.
  • from Residential Tenancies, there is a 3-step process to determining the validity of a particular provincial scheme for investing administrative bodies with “judicial functions”: (i.) historical inquiry; (ii.) is it a judicial function?; (iii.) review the tribunal’s function as a whole.

Charter

  • s.6 [mobility], s.7 [life, liberty, & security of the person], s.8 [security against unreasonable search & seizure], s.15 [equality].

Doumani & Glenn 1989: Property, Planning, and the Charter

  • Contends property rights are significantly protected by pre-Charter constitutional & admin law.
  • Entrenchment of a protection of property clause in the Charter would make little difference to the effective protection of property rights, particularly in light of s.1 and s.33 [Charter plays little role].
  • Charter affords property rights to the extent that they are required to protect the right to life, liberty, and security of the person under s.7.
  • Some additional protection is afforded to property owners under s.15 against discrimination.

3. Legislative and Institutional Framework

Legislative History

  • in Canada, local government is very important, with a long (pre-Confederation) history. They are provincial creatures, but it is probably very difficult for the province to significantly change them.
  • they are different vis-à-vis other provincial agents because they are elected (part of the democratic process), however, they remain dependent for their jurisdiction upon the province.
  • QUESTION: where does aboriginal self-government fit into the schema of federal & provincial government?
  • there are 2 approaches to statute interpretation: LIBERAL: it is assumed that the legislation is in the public interest and it is interpreted liberally; STRICT: the starting notion is that the individual can do what he/she wants and therefore any restriction is interpreted strictly for the least possible interference with this right.

Richardson 1989: Land Use Planning and Sustainable Development in Canada

  • Early 20th Century
  • Increasing urbanism led to councils of fast growing cities realizing a need for orderly planning.
  • This led provincial governments to enact legislation enabling local councils to prepare plans for their continuing development and impose controls on land use development; this planning became an accepted function of town councils.
  • There was also growth in the interest in outdoor recreation and the protection of scenic areas, Canada established 6 national parks between 1885 and 1914.
  • The origins of most of the contemporary land use planning, conservation, urban planning and health programs can be traced to the early 20th century.
  • Depression and industrialisation led to a decrease in interest in land planning.
  • Mid 20th Century
  • Post WWII led to an increased demand for housing and cities and towns grew at a great rate.
  • It was realized that the postwar surge of urban growth could not be contained by city limits, and that planning would have to be carried out at the “regional” level [embracing the entire urban & suburban area].
  • There was also an increased interest in planning and resource use beyond the urban fringe as there was much concern about the urban shadow and the fact that many large cities were centred on prime farmland.
  • Present
  • Land use planning within municipal bounds has always been considered a municipal prerogative, although some form of ultimate provincial control is present, and has therefore been governed largely by considerations preoccupying local councils: growth; expanding the assessment base; road and transit needs; servicing costs.
  • Unused land, mostly Crown owned, is subject to a completely different regime, dominated by the provincial departments responsible for management of natural resources.
  • Planning of water resources has presented many problems due to overlapping jurisdictions (fed, prov, hydro, municipal, perhaps international [Great Lakes], etc.).
  • the Canadian government adopted environmental impact assessment (EIA) in 1973. This is not “planning” in that it does not predetermine the use of the land but rather responds to a proposal to use an area for a specific purpose, but IS planning in that it tries to anticipate & avert undesirable consequences instead of dealing with them ex post facto. Unfortunately, jurisdictional splits are a barrier to the full realization of this potential [EIA is seen as either a fed or prov responsibility.]
  • the region is being accepted as the principal geographic unit of land use planning, as the arbitrary boundaries of a city or county, or even province, will not serve for planning purposes.

Québec

Ministre des Affaires Municipales 1967: Histoire du Régime Municipal au Québec

  • the Municipal Code (1871) was a codification of the legislative dispositions regarding Quebec’s municipal institutions, except those incorporated by special act.
  • from 1867 to 1876 the legislature created by special act more than 10 cities or towns and amended a large number of charters already granted, extending powers regarding matters of local interest.
  • the Cities and Towns Act was amended in 1922.

Giroux 1979: Aspects juridiques du règlement de zonage au Québec

  • the MC was the first law of general application that gave to local collectives the power to pass true zoning regulations in today’s sense.
  • article 392(a) [from 1930] permitted the division of municipalities into zones and the regulation of usage in all the territory (and not just on streetfronts, parks, or public areas as in Montreal).
  • in 1945, these powers were extended to all rural villages or municipalities.
  • the CTA did not permit cities to validly adopt zoning regulations until 1941. Although it seems surprising that this happened 11 years after this power was given to cities governed by the MC, it must be remembered that most large cities & towns were governed by special acts which certainly accorded them this competence before 1941.
  • in 1903, Montreal was given the power to regulate the destination of construction erected along its streets, parks and squares. However, it was not until 1952 that it was given the power to regulate by zones. This delay occurred because it was necessary to retroactively validate certain regulations that had already been adopted, despite the absence of these powers.
  • in Quebec, the charter of 1929 gave the city the power to regulate the type of constructions along certain streets, but the power to zone the territory did not appear until 1963.

Cullingworth 1987: Urban and Regional Planning in Canada

  • Quebec was the last Canadian province to have a planning act. 1979 saw the province’s first general planning legislation with the LPDA.
  • the emphasis placed by the Parti Québécois on local autonomy & decentralization of power had a profound effect on the character of the new planning system.
  • dramatic changes were ushered in by the Quiet Revolution, including widespread intervention in the provincial economy. Jean Lesage’s “maîtres chez nous” movement was designated to the modernization of the province, an end to laissez-faire in economic & physical development, and a “rattrapage” [catching-up] with the rest of North America.
  • the high degree of autonomy of Quebec municipalities, plus an emphasis on local decision-making, meant that reform of local government had to proceed on a voluntary (slow) basis.
  • in 1965, the power was given to municipalities to amalgamate voluntarily. Progress was minimal, however, and in 1971, the Loi favorisant le regroupement des municipalitéswas passed, providing for provincial definition of regroupment units where this was considered advantageous. This & other measures, however, did not bring about reorganization adequate to facilitate urban & regional planning.
  • some efforts were more successful: in 1965, 14 municipalities were fused into Laval; in 1969, the Montreal Urban Community, Quebec Urban Community, and Outaouais (Hull) Regional Community were created. By the mid 1970s, about 50% of the population was covered by compulsory planning legislation, even though there was no planning act.

Ontario

Gomme 1984: Municipal Planning in Ontario

  • it was only after WWI that Ontario’s cities, towns, & villages were given statutory authority to prepare & adopt plans [they did so before, but probably simply assumed that they did not need explicit authority from the provincial govt to do so.] The 1st general planning enabling statue was the Planning and Development Act (1917).
  • much of the inspiration for conventional “planning” was positive concern for order, efficiency and economy in the extension of public services of the community. Legislation to permit regulation of land use by municipalities, however, goes back to the mid 1800s, promoted by private interests, often as a defence against “nuisance uses” intruding into areas where they were unwelcome.
  • at the end of WWII, there was a substantial backlog of housing need & municipal social capital was needed. Planning was seen as a necessary element to carry out the needed programs.
  • the Planning Act (1946) could be applied anywhere in Ontario. Urban zones became planning areas defined by the Minister of Planning & Development, which could consist of any combination of municipalities of all classes, or parts of such municipalities.
  • the provisions of the act were defined by a new attitude towards planning. An ‘official plan’ was defined as: “a plan…showing a programme of future development…designed to secure the health, safety, convenience and welfare of the inhabitants.”
  • in 1955, this definition was changed to emphasize the ‘programme & policy’ aspects. The approval of the Municipal Board was replaced by that of the Minister of Planning & Development, giving the provincial government more room to intervene, to a degree not dreamt of under the previous legislation, and probably not by the drafters of the 1946 act.
  • in 1959, zoning was “moved” to the Planning Act.
  • the provincial government appointed a review committee in 1975 to look at the nature of planning in Ontario and into the planning system (the legislative framework, regulating mechanisms, planning structure, procedures, and public involvement.)
  • the Committee reported in 1977, and proposed inter alia that the provincial interest in municipal planning be formally defined, the province cease to be responsible for supervising all municipal planning actions, planning authority be exercised directly by municipal councils, the adoption of municipal plans not be mandatory but councils be unable to exercise any statutory planning authority without formally adopted planning policies relating to the planning function concerned, the powers of the Municipal Board be curtailed, a system of interim development control be introduced, special arrangements be made for the parts of northern Ontario without municipal organization, and that the concept of an official plan with legal status be abandoned.
  • the 1979 White Paper on the Planning Act accepts most of the proposals, with the NOTABLE EXCEPTION of the last one [re: the abandonment of the official plan]. The revised Planning Act was enacted in 1983.

Tunnacliffe 1982: Ontario: Legislation Review

  • matters of provincial interest [protection of the natural environment, energy, communications &
    transport facilities, co-ordination of planning activities, resolution of planning conflicts, protection of the financial & economic well-being of the province] are defined.
  • the Minister may also issue policy statements and the Councils shall have regard to these. When they are issued, the Minister may request a Council to amend its official plan. If they do not, then the Minister may make the amendment.
  • up to 10 days before a matter is to be heard by the Ontario Municipal Board, the Minister may define a matter to be in the provincial interest. Then the hearing will be held by the Municipal Board but its report will be sent to Cabinet, which makes a final decision. The concern here is that the province, in the form of its officers on the one hand and its elected officials on the other, will be acting simultaneously as prosecutor and judge.
  • Cabinet appeal from an OMB decision is abolished.

Institutional Framework

Québec

Cullingworth 1987: Urban and Regional Planning in Canada

  • the 1979 act was formed around 4 basic principles:
  1. planning is political rather than technical & therefore decisions should be made by elected representatives.
  2. public involvement should be built in throughout the planning process.
  3. the provincial, county, and local levels of government each have their own responsibilities.
  4. there should be consultation among the levels of government to ensure consistent objectives.
  • a major feature of the act was that it provided a framework for land use planning & development through the establishment of regional county municipalities [planning subregions with boundaries determined after full consultation & negotiation with the public & existing local governments].
  • by 1984, there were ~90 MRCs (Municipalités régionales de comté), required to prepare & adopt interim control bylaws & then a development plan establishing explicit development policy guidelines incorporating provincial proposals.
  • a regional plan forms the framework for local planning. The MRC has to certify that local plans, bylaws, and projects conform with its plan. The act established a provincial commission nationale de l’aménagementthat gives assessments respecting conformity of a planning program or a zoning, subdivision, or building bylaw with the objectives of a development plan.This was conceived of as an administrative agency to referee plan conformity, & NOT as an appellate body like the OMB. This commission was disbanded in 1984, and its duties were transferred to the Municipal Commission.
  • the 1979 act developed a form of regional planning politically acceptable to a province which resisted it for so long.
  • Wolfe: “It is evident…that most MRC plans will…be an amalgamation of plans already made, land use patterns already determined, and controls already imposed by the agricultural zoning and cultural properties act. In this sense, the regional plans will become vehicles of accommodation & adjustment
  • the MRCs resulted from a process of ground-up negotiation, based upon affinities.
  • the provisions in the LPDA did not originally apply to the 3 Urban Communities, but they were brought under the aegis of the act in 1982/83 [ss. 264.1-.3].
  • the LPDA is important at both the local level & at the urban (regional) level [it contains the 3 urban communities and the MRCs].
  • in Quebec today, rural municipalities are governed by the Municipal Code, and urban municipalities (except Montreal & Quebec) by the Cities and Towns Act [which provides a source for “incorporating by reference”the specific cities can incorporate any of the provisions into their charters. i.e. the powers do not COME FROM here, but from the charters piggybacking on this.]
  • if you’re looking for the powers & functions of an urban municipality in Quebec, start with the Cities and Towns Act and supplement this with a look at the town charter [CTA ± charter law]
  • Montreal & Quebec were never “sucked up” into these statutes, so their own city charters give the source of powers. HOWEVER, there may be “sleeper” clauses in the CTA that DO apply, so it is: Charter ± CTA.
  • in 1979, all land use control powers from the CTA and Municipal Code were moved to the LPDA. Any provision in this act is supreme over the town charters. However, s.252 states that this does NOT apply to Montreal or Quebec. In summary, planning in Quebec is divided as follows:
Local
  • Responsible for municipal land development as specified in the LPDA.
  • Planning by-laws consistent with the RCM’s development plan must be prepared covering zoning, building and subdivision.
  • They also have other powers, for example over demolition and public works.
MRCs
  • The province inserted a regional level of government known as Regional County Municipalities (MRCs), for example Granby. There are ~ 100 of these in Quebec.
  • These were defined based on functional reasons & the boundaries were decided by the municipalities themselves, the two exceptions being Montreal and Quebec.
  • There is a uniform source of legislation at the local level. The role of the MRC is limited generally to the development and implementation of the regional land use development plan(& some other items such as waste disposal that may be delegated to them by several municipalities).
  • An MRC council is composed of all the mayors in the region.
  • The development plan is a statement of general aims and includes objectives, policies on land use, delimitation of urbanisation perimeters, zones with special restrictions, special interest zones, and identification of inter municipal public services and infrastructures.
The Province
  • There is not a strong role for provincial bodies in local planning other than the power of disallowance.
  • The Minister can refuse to counter sign by-laws, but the provincial role is generally to provide model plans for municipalities.

Ontario

  • in Ontario, the Municipal Act applies indiscriminately to urban & rural municipalities. However, special legislation may in certain rare cases apply to cities.

Audet & Letténaff 1983: The Land Planning Framework of Canada: An Overview