Sources of Authority: Municipal Planning Statutes

• Author: Howard Epstein
• Pages: 303-357

303

CHAPTER 6

SOURCES OF AUTHORITY:

MUNICIPAL PLANNING

STATUTES

A. PRELIMINARY

Up to this point we have looked at land-use controls exercised either

as a matter of the common law or by the federal or provincial govern-

ments. Here, we turn to the mai n aspects of land-use controls exercised

by municipal governments.

Each province bestows land-use control powers on municipalities

through one or two main statutes, usually termed a Planning Act and a

Local Government Act or Municipal Act, often both together. The usual

features of such statutes are as follows: the provincial role appears;

public participation is featured; powers are specif‌ied, often listed in

detail; su stainability objectives are often explicit or implied; the centra l

planning mechanism is the adoption of an off‌icial plan (OP) to provide

the policy context for land-use by-laws, which then set specif‌ic rules;

various f‌lexibility mechanisms are created such as minor variances

or development agreements; ways to deal with common, larger scale

developments are featured, especially subdivision rules; protections

for certain private property interests, for example, through non-con-

forming use (NCU) rights, appear; often an appeal system is put in

place; and various remedies for rule violation are specif‌ied.

We explore these typical features of municipal land-use planning

law. In considering them, we look at cases and statutes from all prov-

inces. The point is not so much to focus on the present state of the law

in any one place, but to understand the policy issues the law is dealing

LAND-USE PLANNING304

with and to consider the strengths and weaknesses of the various op-

tions, plus to consider possible improvements.

To some extent, the planning law statutes offer municipalities the

main power to regulate land uses, but the ultimate controlling context

of provincial policies is never far from the surface. It is important to

recognize this limitation, whether as Statements of Provincial Interest

controlling the content of off‌icial plans, as in Schedule B of the Nova

ScotiaMunicipal Government Act, or through other measures such as

the power of a provincial minister to directly zone land, as in section

47 of the Ontario Planning Act.

Public participation is a central value of land-use planning. This

is manifested in such provisions as elections, committees with citizen

members, public hearings, open meetings, conf‌lict of interest rules, free-

dom of information rules, appeal s, and the availability of judicial review.

The existence of appeals systems recognizes that local municipal

councils are subject to making decisions inappropriately, and in re-

sponse to local pressures, which may divert their attention from the

principles of good planning adopted th rough their off‌icial pla n. Nine of

the provinces have appellate bodies; in British Columbia, the province

without such a body, there is extensive land-use litigation. The powers

of the appellate bodies are not uniform, the Ontario Municipal Board

(OMB) having the widest review powers.

B. MULTIPLE STATUTES AFFECTING LAND USE

Only in theory could detailed regulation of land use be implemented

at the level of a provincial government. Municipal institutions have

existed in Canada since well prior to Confederation in 1867. Almost as

soon as European settlements appeared in what is now Canada, some

form of local council came into existence. Saint John, New Brunswick,

for example, has had a royal charter since 1785, thus establishing itself

as the f‌irst incorporated cit y in Canada. The essential logic is th at local

government is in a position to be familiar with the physical character-

istics of each neighbourhood, block, and lot and to understa nd how the

community in some areas might best function together. As challenging

as this is in large municipalities, it remains the basic rationale for the

existence of municipal government. In the absence of assigned powers

under the Constitution Act, 1867, local governments are delegated their

powers and responsibilitie s under statute. Each province has adopted a

Municipal Act or equivalent and/or a Planning Act or equivalent. Togeth-

er, these main statutes set out the es sence of municipal land-us e regula-

Sources of Authorit y: Municipal Planning St atutes305

tory powers.1 However important these few main statutes are, land use

is also regul ated by a wide variety of provincial statutes, many of which

confer powers on municipalities, though not always. Appendix B lists

statutes affecting land use, using Alberta as a typical province. Simi-

lar sets of statutes are found throughout the country. But, as we have

noted several times, land-use regulation is a complex matter involving

a multitude of rules that interact.

It is common for the planning statutes to be given a status above

other legislation in the event of conf‌lict. Thus, Saskatchewan’s Planning

and Development Act, 2007 says, “In the event of conf‌lict between the

provisions of this and a ny other Act, the provisions of this Act govern so

far as they relate to urban and rural planning and development.”2 As an

example of this sort of provision trumping another statute’s provisions,

see Bishop-Beckwith Marsh Body v Wolfville (Town).3 In Bishop-Beckwith,

two regulation-making entities, the marsh body and the town, adopted

differing rules for use of the dykes: the marsh body assigned a purely

agricultural use, as did the town, but with exceptions. The situation

involved no direct conf‌lict of the statutes but of the regulations made

pursuant to the statutes. In assessing which should prevail, the court

considered the history of all of the relevant legislation, including the

province’s stated preference for the Planning Act, as well as “the increas-

ing importance of land use planning in our society and the dominant

role to be played by municipalities in this process.”4 In Ontario, the

Greenbelt Act, 20055 provides that it prevails in the event of conf‌lict with

any other Act, as does the Places to Grow Act, 20056; this ref‌lects t he shift

towards centralization of planning in Ontario. The provision has not

been tested against t he same statement in section 71 of the Planning Act.7

One of the main relevant statutes is a Building Code Act, which es-

tablishes inspectors with powers to halt construction not in accord with

1 Municipal Acts al so set out the powers and responsi bilities of local government s

on matters other t han land use, for example, on th e structure of the councils,

the role of admini strative off‌icers, powers over t axation, service s such as police

and f‌ire, the abil ity to enter into contracts, and s o on.

2 SS 2007, c P-13.2, s 4.

3 (1996), 135 DLR (4th) 456 (NSCA) [Bishop-Beckwith].

4 Ibid at para 65.

5 SO 2005, c 1, s 20.

6 SO 2005, c 13, s 20.

7 Other Ontar io statutes relating to l and use contain provision s declaring that in

the case of conf‌l ict they are to prevail, such as t hose establishing t he munici-

pal ities of Hami lton, Ottawa, Sudbury, and Toronto; the Far North Act, 2010,

SO 2010, c 18, s 20 prevails over the Places to Grow Act. Pr inciples of statute

interpretat ion work so as to try to avoid conf‌lict.