MY TAKE: On July 10, 2019, Halton Regional Council unanimously supported and passed a resolution brought forward by me and Halton Hills Mayor Rick Bonnette to eliminate the Local Planning Appeal Tribunal (LPAT). I’m also grateful for the very compelling and passionate delegations from Burlington resident Gary Scobie and a local group advocating for our city’s unique identity, WeLoveBurlington — both of their delegations are provided below in full. I also released a statement that is available below.
On July 10, Halton Regional Council unanimously supported a resolution moved by me and Halton Hills Mayor Rick Bonnette to eliminate the Local Planning Appeal Tribunal (LPAT). I am pleased my Regional colleagues are united in this decision and in our voice to the Province.
The full resolution is available below.
The LPAT, recently reconfigured with resurrected Ontario Municipal Board (OMB) rules through the Provincial government’s Bill 108, adds costs and delays to delivering affordable housing. The previous provincial government worked extensively with the development industry, municipal governments and citizens to reform the powers of the former OMB.
The changes significantly limited its ability to overrule local planning decisions and sped up the process of approvals so that housing could get to market faster and cheaper. Bill 108 essentially reverts the LPAT back to the older OMB rules and procedures where, once again, there will be extensive hearings with lawyers and witnesses that start from the beginning of the planning process and redo all the planning analyses completed by municipal governments and their trained and knowledgeable staff. There is also the ability to introduce new evidence, and restrictions on third party appeals, including by residents.
In addition, the basis of an appeal is no longer limited to a test of consistency and conformity with provincial policies, but now is the much more subjective “highest and best use.”
Reverting to the old OMB rules means longer hearings due to the examination of witnesses and broadening of issues. Developers and municipalities both spend millions of dollars to send lawyers and experts to argue over just what that means, and the usual outcome — at least in Burlington’s case — has not been in favour of the democratically-elected council and our community.
Burlington has spent approximately $660,000 in the last three years on active OMB files. This number reflects spending to-date on active files and excludes OMB files that have been completed, resolved or settled within the last three years and excludes several files where internal legal staff are handling the matters. Burlington’s 2019 budgeted provision to our contingency reserve (for all litigation matters) is just more than $2 million. A one per cent tax increase represents approximately $1.6 million for the city.
The revised LPAT essentially now operates as the planning departments for more than 400 municipalities in the province — neither timely, efficient or cost-effective.
It is worth noting Ontario is the only province in Canada with such a Tribunal, yet communities are successfully planned and built all over the country without one.
Our previous efforts to reform the OMB that brought a measure of improvement have now been completely undone by this provincial government. It has now become clear that if the LPAT exists in any form, it is at risk of reverting back to an antiquated system and, as such, it needs to be eliminated completely.
That is why I am asking other municipalities to pass similar resolutions.
There is always a judicial review of a decision available, but the grounds of those are scoped under due process – there needs to be some subversion of law. That’s what other provinces have.
In short, the “new” rules and procedures for the LPAT will, in fact, add more time and more costs to the delivery of housing — the exact opposite of the stated intent of Bill 108.
As long as there is a Tribunal capable of overriding decisions of municipal governments, not only will housing be more expensive and slower to market, but democratic decisions will be overruled by an unelected body.
Here is the full resolution passed as amended:
WHEREAS The Government of Ontario, on June 6, 2019, passed the More Homes, More Choice Act, 2019, (Bill 108); and
WHEREAS the changes to the Local Planning Appeal Tribunal (LPAT), contained in Bill 108 will give LPAT the authority to make final planning decisions based on a subjective “best planning outcome” approach rather than compliance with municipal and provincially approved official plans and consistency with provincial plans and policy; and
WHEREAS Bill 108 restricts third party appeals of plans of subdivision only to the applicant, municipality, Minister, public body or prescribed list of persons; and
WHEREAS Bill 108 takes local planning decision-making out of the hands of democratically elected municipal councils and puts it into the hands of a non-elected, unaccountable tribunal; and
WHEREAS the LPAT adds cost and delays delivery of affordable housing by expensive, time consuming hearings, contrary to the intent of the More Homes, More Choice Act, 2019; and
WHEREAS Regional and City Councils have spent millions defending provincially approved plans at the OMB/LPAT, including more than $5 million over the last three years; and
WHEREAS the reverting back to de novo hearings adds delays and costs to the housing delivery, as planning decisions start from scratch requiring lawyers, experts and witnesses, repeating the planning analysis already done by local councils; and
WHEREAS Ontario is the only province in Canada that empowers a separate adjudicative tribunal to review and overrule local decisions applying provincially approved plans.
NOW THEREFORE BE IT RESOLVED:
THAT in the short term, the Minister of Municipal Affairs and Housing immediately restore the amendments to the Planning Act that mandated the evaluation of appeals on a consistency and conformity with Provincial policies and plans basis;
THAT in the long-term the Government of Ontario eliminate the LPAT entirely, as an antiquated body that slows delivery and adds costs to housing supply via expensive and drawn out tribunal hearings;
AND THAT this resolution be forwarded to the Premier, the Minister of Municipal Affairs and Housing, Halton’s Members of Provincial Parliament, Leaders of the New Democratic, Liberal and Green parties; the Association of Municipalities of Ontario, the Large Urban Mayors’ Caucus of Ontario, Mayors and Regional Chairs of Ontario and Halton’s local municipalities.
Burlington resident Gary Scobie made a compelling delegation to Halton Regional Council on the item and local group WeLoveBurlington submitted a similarly powerful written delegation. I highly recommend reading them both — they are provided below in their entirety.
Gary Scobie Delegation:
I am delegating today in support of the Motion by Mayor Meed Ward to pursue the elimination of the Local Planning Appeal Tribunal (LPAT). Back in the days of the Growth Plan in 2005, when developers in Burlington said build, our Council said “how high”? That continued until last October when we elected a new Council that now asks “how reasonable” and “how does it fit in”?
“In 1971, a Royal Commission headed by James McRuer found the OMB’s power absurdly broad and its breadth unconstitutional, but alas that report still gathers dust in some storage facility. We missed the perfect opportunity to rid ourselves of this early century entity that no other province ever had or has today. Surely Ontario, one of the founding provinces of Canada, had matured enough by then to cast aside such an overbearing and undemocratic vestige of its past. Surely today, decades later, it is time.” — Gary Scobie, Burlington resident
The history of the LPAT is entangled with the history of the Ontario Municipal Board (OMB). First created in 1906 as the Ontario Railway and Municipal Board, it was to manage the growth of the railway system to and through towns and cities of Ontario, something that was opposed in some places and welcomed in others. It was given the power to overrule municipal council decisions that did not benefit the growth of the railway.
Once the railway system was built out, the Board was given the same overruling powers strictly on matters of development in municipalities. It ruled with a heavy hand, the majority of time in favour of developers and against elected council wishes.
In 1971, a Royal Commission headed by James McRuer found the OMB’s power absurdly broad and its breadth unconstitutional, but alas that report still gathers dust in some storage facility. We missed the perfect opportunity to rid ourselves of this early century entity that no other province ever had or has today. Surely Ontario, one of the founding provinces of Canada, had matured enough by then to cast aside such an overbearing and undemocratic vestige of its past. Surely today, decades later, it is time.
Just a few years ago, the previous government of Ontario re-jigged and renamed the OMB to the LPAT, attempting to give more help and more weight to citizens and councils fighting over-development in their towns and cities. The current government has recently turned the clock back in time and essentially brought back an even more developer-friendly OMB but kept the LPAT name.
Sadly, the “L” for “Local” has been rendered nearly meaningless. The adversarial nature has returned and those who attempt to fight unreasonable height and location of high rise buildings as official. Participants in hearings may not speak there, only submit written comments, a draconian move more undemocratic that even the OMB ever imagined.
Municipal Official Plans that take years to develop in consultation with citizens, that have been reviewed and accepted by Regional Councils as compliant with Ontario’s Growth Plan and policy. Mandates, can be overruled by one unelected LPAT official if the arguments by the developers seem more compliant with density increase mandates than municipal arguments. But developers have essentially been given a stacked deck to work with, especially for high rise buildings in designated growth centres, such as Urban Growth Centres, and all types of Mobility Hubs.
These growth centres all have density targets to work toward, but the ace in the hole for developers is that the targets are “minimums” to meet within a time frame and the Province “encourages” municipalities to go beyond the “minimum.” So there actually is no limit on how high a high rise can go and how many high rise buildings can be stuffed into one of these growth centres (particularly downtowns not built for expansion) before the centre becomes congested with people, with vehicles and virtually drained of the community viability and livability aspects the Province claims to want to preserve and enhance. There is no implied or mandated constraint on growth, and municipalities have no weapon against arbitrary LPAT decisions that treat each application singly without context of the whole and are set up in favour of growth at a cost that will haunt us for decades.
You may think I am over-stating the need to rid ourselves of the LPAT, but in Burlington we are already seeing its effect on our downtown, with decisions on high rises in our downtown overruling our Council despite their decisions being within targets. Please act together and support our Mayor’s motion that will aid all four Halton municipalities in managing the coming growth in a manner that truly exemplifies “good planning.”
WeLoveBurlington written delegation:
WeLoveBurlington is a small, non-partisan, grass roots organization that advocates on a broad range of issues that affect the City of Burlington and its citizens. From its onset, we have opposed both the spurious rationale and the imposed process of Bill 108; particularly the unilaterally imposed amendments that it makes to duly enacted, existing legislation. As such, we endorse the motion of Mayors Meed Ward and Bonnette to abolish the Local Planning Advisory Tribunal or LPAT, both a creature of the past and a monster of the present.
“Any quasi-judicial construct, such as the LPAT, that has decision authority over a duly elected body, such as a municipal council, is a flawed creature, the product of a patronistic, dated and closed world view.” — WeLoveBurlington
Our delegation is very brief and speaks to a single fundamental concept – that actions that affect people’s lives and community should have the active involvement and informed consent, or at least awareness, of those people. In other words, citizens have a fundamental right to know about and participate in actions that touch them. One of our tag lines, recently coined, is “Burlington’s Future Determined First and Last by Burlington.” Although this may seem simplistic or parochial we firmly stand by the precept that Burlington’s citizens should always be principal in decisions that involve their interests; that Burlington’s Council – duly elected and representing all the citizens – has a far stronger natural right, an obligation, to influence the City’s future than does an unelected, external tribunal appointed by a government more removed and distant. The government that governs best is not only that which governs least but that which is closest to those to whom it must answer; that is accountable to its neighbours and shares not only their concerns but their physical community.
We fundamentally agree with current wisdom that suggests that the OMB and more recently LPAT is a creature of the past, and no longer serves the interests of the citizens of the province. Any quasi-judicial construct, such as the LPAT, that has decision authority over a duly elected body such as a municipal council is a flawed creature, the product of a patronistic, dated and closed world view. We strongly advocate that Ontario take its place with the rest of Canada and enable municipalities to have a determinate role in their future. Abolish the LPAT.