A Municipal and Planning Law Primer

• Author: Mary L. Flynn-Guglietti
• Profession: McMillan Binch
• Pages: 271-292

A

Municipal

and

Planning

Mary

L.

Flynn-Gugliettt

I.

INTRODUCTION

If

you are

retained

on the

acquisition

of a

parcel

of

land,

you may be

required

to

provide

an

opinion with respect

to

whether

the

property

and/or buildings

on the

property comply with

all

municipal by-laws

and

regulations. Many

a

lawsuit against solicitors

in a

real estate trans-

action

is the

result

of

solicitors

not

fully

understanding,

or not

inform-

ing

their client properly

of

land

use

limitations imposed

by

either

the

municipalities

or

regulatory agencies.

The

purpose

of

this paper

is to

provide

an

overview

of

planning legislation

in the

province

of

Ontario

and how it

impacts

on

land use.

The

main statute governing

municipalities'

powers

in

land

use

plan-

ning matters

in the

province

of

Ontario

is the

Planning

Act.1

This paper

will

be

limited

to

reviewing relevant sections

of the Act and

other

provincial

legislation

in

order

to

provide

an

appreciation

of

where

to

look

and

what

the

various documents mean.

How to

process

an

amend-

ment

to

either

a

municipality's

official

plan

or

zoning by-law

is

beyond

the

scope

of

this

paper.

Of

McMillan

Binch.

This paper

was

prepared with

the

assistance

of

Jonah

Davids,

B.A.,

LL.B.,

also

of

McMillan Binch.

1

R.S.0.1990,

c.

P.13

[hereinafter

the

Act].

271

Law

Primer

272

Mary

L.

Flynn-Guglietti

Historically,

many real estate lawyers have relied

upon

letters

from

municipalities

and

other regulatory authorities

to

satisfy

themselves

with respect

to

compliance.

However,

over

the

last decade many munic-

ipalities

and

regulatory agencies have intentionally

shifted

the

burden

of

risk associated with letter search inquiries directly onto

the

shoulders

of

the

lawyer. Responses received

from

letter inquiries

may not

address

specific

enquiries

and may

contain qualifications

and

wording that

expressly limit

liability.2

Therefore,

it is

critical

to not

only understand

the

various tools used

to

limit

land

use on a

particular

property,

but

also

to

understand

how to

pre-

pare

a

proper zoning opinion. Generally,

the

courts have ruled that real

estate lawyers have

a

duty

to

conduct

all

searches required

by

prevailing

practice

and

otherwise reasonable

in the

circumstances.

If it is the

inten-

tion

of the

solicitor

to

limit

a

zoning enquiry,

it

will

be

necessary

to

ensure

that

any

limitations

are

properly understood

and

agreed

to by the

client.

H.

THE

PLANNING

ACT

Although municipalities have been given considerable power

in

deter-

mining

the use of

land, that power

is

limited

by

provincial legislation.

The

main statute governing municipalities' powers

in

land

use

planning

matters

is the

Planning

Act.

1)

Official

Plans

All

municipalities

are

required

to

prepare

and

adopt

an

official

plan

and

submit

it for

approval

to the

Minister

of

Municipal

Affairs

and

Housing.

In

many instances

the

Minister's

approval authority

may be

delegated

to

an

upper tier municipality. Pursuant

to

section

15 of the

Act, upper tier

municipalities

may

assume

any

authority with respect

to

planning mat-

ters that

the

local

municipality

has

under

the Act on

such terms

and

con-

ditions

as may be

agreed

upon

with

the

council

of the

local

municipality.

Upper tier municipalities

are

county, regional,

or

district municipalities.

For

example,

the

City

of

Mississauga

is

located

in the

Regional

Municipality

of

Peel.

Both

the

City

of

Mississauga

and the

Region

of

Peel

have enacted

official

plans.

The

local municipal

official

plan must

conform

to the

regional

official

plan.

Sections

27 and 28 of the Act

require

a

local

R.S.

Cash,

"Letter

Search

Inquiries

—

Allocating

the

Risks"

in Law

Society

of

Upper

Canada

Lecture

(Toronto:

L.S.U.C.,

1993)

at

1.

2