Blog: Back to the Future – Ontario’s Misguided Land Use Reforms

Blog post  by Richard D. Lindgren, CELA Counsel

For almost 50 years, CELA has represented clients in the courts and before administrative tribunals in relation to proposed land uses or developments that pose unacceptable risks to the environment and public health and safety.

Over that timeframe, it has become readily apparent to CELA, other stakeholders, and members of the public that urban sprawl is wasteful, costly, and ultimately unsustainable. Therefore, sprawl must be carefully avoided whenever land use decisions are being made by planning authorities in Ontario.

Among other things, sprawl causes loss of productive farmland, creates air and water pollution, reduces flood resilience, impairs natural heritage and wildlife habitat, and establishes inefficient development patterns that exacerbate traffic congestion on provincial and municipal roads.

On this latter point, Dr. Dianne Saxe, the former Environmental Commissioner of Ontario (ECO), argues that from a climate change perspective, “land use is Ontario’s oil sands”.

Notably, in her final energy conservation report to the Ontario Legislature as the ECO, Dr. Saxe was highly critical of provincial policies and proposals that increase “urban sprawl by directing hundreds of thousands of people to new, distant suburbs with high servicing costs, few employment opportunities, and too little density to support public transit.”

To prevent this undesirable planning outcome, the ECO report recommended that communities should be “building up and in instead of out,” particularly since providing “a greater mix of housing in existing areas can shorten commutes, reduce fossil fuel use, help address high living costs, and protect natural areas and farmland.”

Despite receiving this sound advice from the independent ECO in March 2019, the Ontario government is now pursuing various planning reforms that will likely facilitate more – not less – sprawl across Ontario.

For example, the Ministry of Municipal Affairs and Housing (MMAH) recently completed public consultations on proposed changes to the Provincial Policy Statement (PPS) issued under the Planning Act. The PPS provides important direction to planning authorities on matters of provincial interest, and land use decisions are legally required to be consistent with the policies outlined in the PPS.

In recent years, the PPS has been incrementally strengthened to safeguard the public interest by building strong, healthy communities, conserving natural heritage, and mitigating natural and human-made hazards. At the same time, based on our land use casework on behalf of CELA clients, we find that there is still considerable room for improvement in the current PPS, especially to protect low-income persons and vulnerable communities against the impacts of noxious or poorly sited industrial development.

However, the MMAH’s consultation on its proposed planning reforms is not aimed at fixing the existing gaps or problems within the PPS (e.g. interpretive uncertainty, preferential treatment of aggregate extraction, etc.). Instead, the draft 2019 PPS contains proposals that effectively rollback or undermine certain protective policies in the current PPS.

In response, 80 non-governmental organizations (including CELA) jointly submitted a brief that objects to the troubling PPS changes that are being proposed by the Ontario government, such as:

  • allowing mineral aggregate extraction to occur in significant natural features that are currently protected under the PPS (e.g. significant wetlands, woodlands, wildlife habitat, fish habitat, habitat of species at risk, etc.);
  • weakening or removing mandatory requirements that currently direct municipalities to ensure compact development, efficient use of infrastructure, integration of transportation and land use planning, and achievement of intensification and development targets;
  • enabling municipalities to adjust settlement area boundaries in the absence of a comprehensive review; and
  • making it optional for municipalities to protect non-significant wetlands.

At the same time, CELA submitted a supplementary brief to the MMAH to outline our additional concerns about the proposed PPS, such as:

  • failing to restrict urban growth in proximity to existing nuclear power plants in Ontario;
  • providing planning authorities with greater authority to approve the use of private on-site sewage/water services rather than more preferable municipal servicing options;
  • allowing “market demand” and “market-based” considerations to drive residential development patterns and the housing supply mix; and
  • failing to provide appropriate direction to planning authorities to mitigate climate change through the reduction of greenhouse gas emissions.

In addition to revising the PPS, the Ontario government is also consulting Ontarians about proposed changes to the Aggregate Resources Act (ARA) and the general regulation under this statute.  It appears to CELA that the ARA changes are primarily intended to increase the supply of aggregate in order to facilitate the construction of new buildings, roads and other infrastructure that will be permissible under the proposed PPS changes described above.

For several decades, the ARA has been used to licence and regulate the establishment, expansion, operation and rehabilitation of pits and quarries in many areas of Ontario. However, the 2017 ECO report identified serious shortcomings in the existing ARA regime and offered recommendations for long overdue reform.

Unfortunately, Ontario’s proposed ARA revisions do not implement the ECO’s recommendations, and instead outline a number of questionable changes, such as:

  • revising the application process for aggregate operations that propose to excavate below the water table;
  • ousting the application of municipal zoning by-laws relating to the depth of aggregate extraction;
  • specifying that municipal zoning on Crown land does not apply to aggregate extraction;
  • restricting the ability to impose ARA conditions that require agreements between municipalities and aggregate producers regarding haulage routes;
  • streamlining compliance reporting by aggregate operators;
  • allowing aggregate operators to “self-file” changes to site plans for unspecified “routine activities”; and
  • enabling unspecified “low risk” activities to occur without an ARA licence if regulatory conditions are followed.

In summary, the Ontario government appears poised to revise key provisions in the PPS and the ARA that have traditionally helped to protect CELA’s client communities and the environment. However, the province has not provided any compelling evidence-based justification for these changes.

In these circumstances, CELA urges the Ontario government not to entrench outdated land use approaches in the revised PPS that have caused or contributed to urban sprawl throughout southern Ontario. In addition, CELA remains concerned about the government’s ARA proposals, which will likely intensify – not eliminate or reduce – divisive land use conflicts involving new or expanded aggregate operations.