Since Halton Regional Council unanimously approved a resolution, on July 10, asking the Province of Ontario to eliminate the Local Planning Appeal Tribunal (LPAT) and asking other local municipalities in Ontario to pass similar resolutions, I and the Mayor’s Office have encountered some questions from the community surrounding LPAT, development and the appeals system.
Below you’ll find a non-exhaustive list of Q-and-A’s to help keep residents informed and clarify some misinformation out there:
Does Ontario need an LPAT?
- Ontario does not need the LPAT. No other province has the sweeping powers of the Ontario Municipal Board (OMB)/LPAT (i.e. de novo hearings) with an unelected body governing local planning decisions. Communities are successfully built across our country without this additional layer of bureaucracy and it’s time Ontario’s cities are similarly empowered with the same abilities and autonomy that exist throughout the rest of Canada.
- Other Canadian provinces have judicial tribunals that are limited to hearing planning appeals when things such as an error in law takes place — for example, relating to issues in process, such as a municipality did not hold a public meeting on a development application or did not give the public sufficient notice. It is meant to prevent councils from making closed-door planning decisions.
- Coincidentally, the original creation of the LPAT from the OMB moved us closer to the more restrictive tribunals that other provinces have.
Doesn’t eliminating the LPAT take away a citizen’s democratic rights?
- The best democratic right a citizen has is at the ballot box. Burlington residents used it in the last municipal election to vote in an almost entirely new council, and a new mayor, with members whose views on development more closely aligned with the majority.
- The LPAT allows a single, unelected and unaccountable individual to overrule the decisions of their elected council.
- In Burlington, there are seven minds making decisions. Citizens get to elect those seven minds every four years — that ultimately put the decision-making power in the hands of residents.
Politicians are not experts in planning, so don’t we need the LPAT’s experts to decide on applications?
- The City of Burlington has a planning department of experts that advise Council.
- Council then publicly debates every application proposal and invites input and feedback from the citizens that democratically elected them to represent their values. Weighing both the expert input from staff and feedback from the public, Council democratically makes the best decision for its municipality.
- Councils rely on the expertise of staff to advise them on a range of other matters crucial to public health and safety, including clean drinking water, ambulance service, traffic control, waste management, public health, social services and more. None of these have a tribunal that can overrule the decision by council. Planning should be no different.
The Ontario Municipal Board (OMB), LPAT’s predecessor, was created for a purpose — doesn’t that mean it is still relevant today?
- The OMB was created in the early 1900s as the Ontario Railway and Municipal Board to ensure the growth of the railway system to and through Ontario municipalities. It was given power to overrule the decisions of local municipal councils because back then (in the wild west world of development), some municipalities opposed the installation of a railway system and so that power to override was meant to ensure the growth of that system. Once the railway was built, the OMB’s power was extended to overriding the decisions of municipalities on matters of development.
- Nearly 50 years ago (in 1971), James McRuer (a Canadian lawyer, judge and commissioner) headed a Royal Commission that found the OMB’s power to be unconstitutional and extremely broad.
- The OMB/LPAT is no longer a necessity and no longer relevant in Ontario.
If Ontario municipalities were all on-board for the OMB reform into the LPAT in 2017/2018, then why are they speaking out against and asking for the elimination of the LPAT now?
- For local municipalities, particularly in Halton and Burlington, the conversation was always around “we want it (OMB) gone.” Hearing that would not likely not happen in the Province of Ontario, then the Plan B for municipalities was “let’s at least try and fix it.”
- The fact remains as long as the LPAT exists in any form, it is at risk of reverting back to an antiquated system and rules. Therefore, it needs to be eliminated completely.
Does the LPAT rule in favour of citizens?
- Burlington’s experience has been that the LPAT rarely rules in favour of a citizen’s appeal, rather it favours the deep pockets that can afford lawyers and the expensive testimonies of experts to make their case.
- In nearly a decade, in Burlington, where a citizen appealed a council decision, not a single OMB/LPAT case has ruled in their favour. Several recent examples include citizens’ appeals of the Dynes Road development and Georgina Court development — citizens lost both of those appeals.
Does the City of Burlington lose at the LPAT because its Official Plan (OP) is outdated?
- Our OP was updated in 2008 and includes the provincial intensification targets that have not changed since the 2017/2019 updates to the OP. Related to this is the Major Transit Station Area (MTSA) designation downtown Burlington currently has that was used in the OMB decision on the ADI Martha Street application that approved 26 storeys. That decision references the development was deemed appropriate for a MTSA. This is why we are working to move that MTSA designation from the downtown and onto our Burlington GO station — a spot better equipped to handle increases in density.
There have been references to a provincial intensification distribution of population of 185,000 by 2031 for the City of Burlington – but there has also been mention of a 193,000 population distribution. Are Burlington’s numbers wrong?
- No, it’s the same intensification target – the 193,000 number for Burlington includes the approximate 4% undercount Statistics Canada assumes in missed houses in its Census. The 185,000 distribution number does not include the 4% undercount.
But isn’t the OP legally a 1993 plan with updated amendments?
- Burlington’s OP was updated in 2008 (the parts that needed updating – the sections that were still relevant were left alone) — but the 2008 OP is under appeal, so that forces the referencing of the next most recent legally binding document that is not under appeal, which is the 1993 OP.
- The City of Burlington is on track in reviewing and updating the adopted 2018/19 OP by March 2020 — after that, delegated approval heads to the Region of Halton, which can take place quickly.
- I and the City have repeatedly stated we are all very committed to get the OP review done within the year since enacting our Interim Control Bylaw (ICBL) on March 5.
Isn’t it better to take the politics out of planning?
- If you take the politics out of planning, then you take democracy out from the hands of citizens.
- Our municipal governance system is based on democracy and therefore planning of a city must be a politically democratic process, with citizens’ rights to comment and choose their decision-makers at the ballot box.
The LPAT, particularly reverting back to the old Ontario Municipal Board rules and de novo hearings, directly contradicts the Province’s goal in principle to save money and get more housing to market, cheaper and faster:
- The LPAT achieves neither of the Province’s goals. It acts as the planning departments for more than 400 municipalities in the province with a small number of adjudicators trying to do the work of the fully staffed planning departments of those 400-plus cities and towns — that will hardly be timely, efficient or cost-effective in getting more housing to market.
- The backlog of cases at the LPAT was created during its transition from the OMB because developers knew the former OMB rules were more favourable to them. As a result, many filed “preemptive” appeals as soon as they could. This was done not based on any decision by a council, but because they simply wanted to “preserve” their rights under the old OMB rules. They wanted to be grandfathered in — and they were.
- What does it say about democracy and fairness when a tribunal system allows preemptive appeals before a municipality decides on an application?
- The LPAT didn’t create the backlog and reverting to the old OMB rules as a result of Bill 108 won’t solve the problem of longer hearings and more delays; it will make it worse.
- The backlog is the direct result of the OMB being weighted against local decision-making and toward an “anything goes” approach. That’s why the developers have clogged the system with appeals under the old rules.
- This system is not serving anyone. Our communities’ voices are being overridden and valuable time and money is being wasted that could be better spent on front-line services and the priorities city councils have been democratically elected to implement for the citizens who elected us.
- We need to eliminate the LPAT and join the rest of Canada in empowering our local governments to make the best decisions about how their cities continue to grow and evolve.
- Therefore, we are requesting the elimination of the LPAT — a costly, time-consuming, undemocratic body that delays the delivery of housing.
— Mayor Marianne Meed Ward, City of Burlington