Sources of Authority: Municipal Planning Statutes

• Author: Howard Epstein
• Pages: 303-357

303

CHA PTER 6

SOURCES OF AUTHORITY:

MUNICIPAL PLA NNING

STAT U TES

A. PRELIMINARY

Up to this point we have looked at land-use controls exercis ed 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, usu ally 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 s pecif‌ied, 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 speci f‌ic rules;

various f‌lexibility mech anisms are created such a s minor variances

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

developments are featured, especial ly 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 v iolation are specif‌ied.

We explore these typical feature s of municipal land-use planning

law. In considering them, we look at cases and statutes f rom 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 strengt hs and weaknesses of the various op-

tions, plus to consider possible improvements.

To some extent, the planning law statutes offer municipal ities the

main power to regulate la nd uses, but the ultimate controlling context

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

recognize thi s limitation, whether as Statements of Prov incial Interest

controlling the content of off‌icial plans, as i n Schedule B of the Nova

Scotia Municipal Governme nt Act, or through other measures such as

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

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 w ith 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 system s recognizes that local municipal

councils are subject to making deci sions 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 bod ies; 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 t he 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 Can ada since well prior to Confederation in 1867. Almost as

soon as European settlements appea red in what is now Canada, some

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

for example, has had a royal char ter 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 fami liar 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 i n 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 atutes 305

tory powers.1 However important these few main st atutes 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 li sts

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

lar sets of statutes are found th roughout 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 g iven a status above

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

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 a nd 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 m ade

pursuant to the statutes. In a ssessing which should prevail, the court

considered the history of all of t he 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 centrali zation of planning in Ontar io. 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 i s 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.