Supporting an effective land use planning system in Ontario
I was appointed as the Chair of the Local Planning and Appeal Support Centre (LPASC) on March 7, 2019, when the term of my predecessor, Anna Pace, came to an end.
On February 21, 2019, the government indicated that it would not be able to provide further funding for LPASC and, hence, the Centre was required to wind down its operations. It was my role to work with Mary Lee, our Executive Director, to complete this work.
Under section 10 (1) of the LPASC Act, the agency is required to provide the Attorney General with an annual report.
As this is the only annual report that LPASC will issue, I wanted to take the opportunity to thank Anna Pace and her fellow board members, Mark Leach and Carolyn Mackenzie for their insightful leadership in establishing the new agency, which constituted a novel construct in the land use planning sphere.
I would also like to express my sincere thanks to Mary Lee for her efforts to operationalize LPASC’s mandate, which included significant public outreach and the retention of skilled staff. I also wish to acknowledge the commitment of LPASC employees and, in particular, the professional manner in which they met the needs of the agency’s clients.
Due to the hard work of Mary and her staff, as well as Ministry of the Attorney General personnel, the wind down of the agency’s operations proceeded as planned and we were able to redeploy many of the Centre’s assets to other ministry programs. In addition, I am pleased to report that the great majority of LPASC staff have found work within the provincial or municipal governments. I am confident that their experience at LPASC will enrich the mandates of their new organizations.
The LPASC experience, which we have documented in this report, contains some useful insights about the land use planning process, which we hope that governments and stakeholders alike will bear in mind in our collective efforts to improve the planning system in our province.
Chairman of the Board
I am pleased to submit the 2018/2019 Year in Review of the Local Planning Appeal Support Centre (LPASC) to Ontario’s Ministry of the Attorney General. Given the decision of the Ontario Government to close the doors of LPASC by June 30, 2019, this Review will be the one and only annual review of operations. It is intended to serve two purposes: one, to provide an overview to the steps taken to start this new government agency; and two, to show the degree of value that a free and independent resource in land use planning matters can provide to the public. From our experience over the past year, it was clear that a service like LPASC’s can play a vital role in making Ontario’s land use planning system fair, affordable and effective, benefitting all.
LPASC was created as one component of reforms introduced to Ontario’s land use planning system by the previous government. It was premised on the proposition that individuals and rate payers felt disenfranchised and unable to influence the plans of developers who typically could rely on extensive legal and planning resources to promote their plans.
On February 21, 2019, the current government made the decision to close LPASC due to modest service demand. LPASC had until June 30, 2019 to wind down the business.
Naturally, staff and stakeholders were disappointed by the decision.
I am grateful for the many compliments and expressions of support sent to LPASC. Clients expressed a common sentiment–that they could not have achieved a positive outcome had it not been for the services provided by LPASC.
In this short time, LPASC achieved a great deal because of the hard work and commitment of a small team of passionate staff who were highly committed to realizing the Centre’s mission. I am grateful to them and to all the stakeholders and Directors of our Board who shared our vision to make a difference in the land use planning system.
The team fully understands that, in periods of austerity, tough decisions must be made. We believe however, that an LPASC-type model has considerable merit as an approach to balance the playing field and speed up decision-making in the land use planning sphere. Based on our collective experience, we hope that, in the future, it can be replicated in the provincial or municipal field.
Mary Lee, Executive Director
LPASC was created by the previous government to help improve Ontario’s land use planning system. It had been argued that residents and municipalities across the province needed a greater say in how their communities developed over time, and that the process for resolving disputes needed to be more effective to benefit everyone–citizens, municipalities and developers, alike.
To that end, on June 23, 2016, the former provincial government launched an official review of the Ontario Municipal Board (OMB) to determine ways in which Ontario could improve upon its system for planning appeals. Upon completing public consultations and the review, the former government passed new legislation, the Building Better Communities and Conserving Watersheds Act, 2017. The Act replaced the Ontario Municipal Board with the Local Planning Appeal Tribunal and created the Local Planning Appeal Support Centre.
The new rules and regulations introduced through the Building Better Communities and Conserving Watersheds Act, 2017 included service offered through LPASC. The objective was to help the public become better informed about local planning matters and the provincial policy context so that they were better able to contribute to planning decisions that would affect their community. LPASC was created, not only to make the planning process more accessible to the nonexpert, but also to help facilitate early resolution of disputes, reduce the number of appeals presented to LPAT, and to create greater clarity in the rules and regulations of the appeals process. It was hoped that a free and independent service would lead to a more fair and affordable land use planning system in Ontario.
Under the Local Planning Appeal Support Centre Act, 2017, LPASC was given the mandate to:
LPASC was created as an independent agency of the Government of Ontario, to be governed by a Board of Directors appointed by the Government of Ontario and accountable to the Ministry of the Attorney General in accordance with the Agency and Appointments Directive (AAD). According to the LPASC Act, the Board was to have a minimum of five members, who were accountable to the Board Chair.
In its first year of operation 10 meetings were held. Two by-laws were put in place: By-law No. 1 created a Code of Conduct; By-law No. 2 set out board meeting procedures. The LPASC Board of Directors was comprised of a Chair and two Directors and represented a cross section of skills including:
The Chair and Directors received compensation on a per diem basis. Board Director biographies and renumeration
Anna Pace has extensive experience in senior roles in public sector transportation and land use planning, intergovernmental and inter-agency relations, and transit governance. Ms. Pace led planning for major rapid transit projects at Metrolinx and the TTC. She has also held senior positions with the City of Toronto in City Planning, Transportation Planning, and Intergovernmental Relations. Ms. Pace is a Registered Professional Planner and member of the Ontario Institute of Planners. She has a Master’s in Environmental Studies – Urban and Regional Transportation Planning from York University.
Mark Leach has more than 30 years’ experience in law, policy and program development, and public sector leadership. A common theme throughout his career has been a commitment to improving access to justice, particularly for people whose interests are in conflict with those of large institutions.
Carolyn Mackenzie is chair of the Glebe Community Association and was recently appointed to serve on Ottawa’s Planning Advisory Committee as a representative of the Federation of Citizens’ Associations of Ottawa. Currently in a senior leadership role with Colliers Project Leaders, Carolyn brings significant commercial, advisory and project management experience to both her professional and volunteer roles.
On February 21, 2019, Irwin Glasberg, the Assistant Deputy Attorney General for the Policy Division of the Ontario Ministry of the Attorney General, took over as the Interim Chair until LPASC formally ceased operations on June 30, 2019.
LPASC’s accountability framework was set out in the interim Memorandum of Understanding. The government-approved draft MOU was provided to LPASC for Board review and approval, in May 2018. The Board-approved MOU was submitted to the Ministry of the Attorney General for final approval in August 2018. The MOU established, among other requirements:
Key milestones in delivering on the MOU requirements throughout the first three quarters included:
LPASC was created as a unique service agency unlike any other in Ontario, or even Canada. Its mandate was to not only answer questions from the public about land use policy and process, but to provide free professional planning and legal services to eligible individuals who wanted to become involved in an appeal at the Local Planning Appeal Tribunal (LPAT).
The Centre’s professional services team was made up of five team members: two accredited and professional land use planners, two lawyers, and the Manager/Registrar, who was also an accredited professional planner.
The first year of operation posed challenges in that the Centre had to begin providing services upon opening, while concurrently developing its list of services, eligibility criteria and a plan on how to best provide those services province wide. The early case work of the first quarter helped LPASC establish and understand its client group and needs so that it could begin to fully market its services.
In the short period of time that LPASC was operational, it provided direct support to over 600 individuals and groups who had been unable to find assistance with their concerns anywhere else. The nature of LPASC cases related to all aspects of land use planning matters in the province, including economic development, lot creation and development, environmental protection, agriculture uses, incompatible uses and sensitive uses, built form, intensification, and urban design.
Wide scope of service needs
The inquires LPASC received ranged from simple questions about process to significantly more complex discussions of policy and the practice of land use planning, to requests for full representation at hearings and other events.
Staff helped ordinary citizens understand what kinds of changes are proposed in their community and how to be involved in the approvals and appeal process. They helped municipal staff understand and navigate the new appeals process. They helped applicants file better applications and understand the importance of the submissions made to the municipality.
In many cases, members of the public were able to access LPASC’s information services alone to help them prepare meaningful comments prior to a municipal decision. Easy-to-access information and self-help guidance were provided through various webpages and documents available for download. Answers to Frequently Asked Questions helped respond to basic public inquiries freeing up staff to focus on clients with more complex inquiries and concerns.
LPASC staff provided a range of advice and guidance. They helped clients prepare to participate in LPAT hearings. In some cases, planning staff helped clients gain a better understanding of the nature of a planning application and alleviated a client’s concerns entirely. With LPASC’s guidance, clients sought early resolution and, in some cases, retracted their appeals, altogether.
While all planners are typically required to engage the public and answer questions as part of regular responsibilities, this expanded role to provide advice and guidance made the work of LPASC planners unique. For example, planners working at a municipality would not have the authority to give advice to residents who oppose a particular development application, and private planning consultants would not have the resources to provide their expertise to those who could not afford to pay their fees.
Importance of third-party independence
Since LPASC was not directly involved in the planning application or the municipal decision, the advice and information provided was truly as a third party, and clients had a high level of trust in the information they received.
LPASC received positive feedback from municipalities who valued having the ability to refer their constituents to LPASC for an alternative point of view. In such instances, LPASC was able to explain the policy context for a municipal planning decision in a way that was viewed to be unbiased.
Nature of professional services
A percentage of inquiries resulted in LPASC providing a range of professional services such as legal representation and expert planning evidence in support of an appeal. In most of these cases, LPASC was able to facilitate a settlement or help a client advance their appeal to the Case Management Conference stage through the preparation of the required Case Synopsis and Appeal Record, including expert planning evidence in the form of an affidavit from a qualified professional planner on staff.
LPASC’s professional services often helped to clarify policy and procedures for the benefit of the overall system. Examples include the following:
At the end of the first year, LPASC had taken on a total of 609 cases, which was on target with the estimate made prior to the Centre opening in April 2018. The fourth quarter was significantly impacted by the announcement of the Centre’s closure. The Centre projected a conservative estimate for future growth on the basis that its services would become better known.
By year end, LPASC had helped clients residing in 188 municipalities across Ontario, which represents 42 per cent of all municipalities. Clients were based as far north as Thunder Bay, and all the way to the eastern and south-western border of the province, demonstrating that the need for service was broadly based and geography did not present any barriers to accessing services.
Client cases covered all stages of the appeals process, with 37 per cent concerned with a specific appeal.
The majority of cases involved planning applications concerning major planning matters, such as Official Plans and Zoning By-laws, confirming that LPASC was fully aligned with supporting the primary focus of LPAT’s new legislative changes.
Note that recent changes to LPAT’s jurisdiction may, in some situations, have adjusted the processes referred to in these cases.
Recent LPAT decision clarifies rules for obtaining party or participant status
LPAT’s rules of practice and procedure are being clarified as cases come forward under the new regime. Recently, LPASC helped to clarify an important element of the new appeal process for major planning matters through one of its cases underway in Kitchener.
Under the new appeal system, once a municipality makes its decision, only the appellant and municipality are “party” to the appeal. Others, including the applicant, are directed to request party status, a minimum of 30 days prior to a Case Management Conference (CMC). (The CMC is a mandatory proceeding held before a hearing where, among other matters, the Tribunal identifies who will have party or participant status.)
In the Kitchener case, the applicant filed a motion to request that party status be granted to them prior to the CMC. The applicant wanted party status in advance of the CMC so they could be entitled to bring forward motions for dismissal of the appeal.
LPASC was of the view that, if LPAT granted the motion and gave the applicant early party status, the applicant would gain an unfair advantage over others seeking party status at the CMC. In the current Kitchener case, the applicant could then file a motion to dismiss the case before the Tribunal had the opportunity to review other positions and assess the appeal record fully. With party status ahead of a CMC hearing, the applicant truncates the Tribunal process and, in effect, influences the outcome in their favor.
LPASC believed that accepting the applicant’s motion would be contrary to Ontario’s then policy goals–to level the playing field so that all voices have a chance to be heard and decisions are made at the local level. An unfavourable ruling would not only jeopardize LPASC’s current case but could be detrimental to its future cases. Other applicants with the financial resources could use similar tactics, which would severely undermine the new system.
At the motion hearing, LPASC argued that the applicants do not have any special status under the LPAT Act and, therefore, must be treated just like any other potential non-appellant party. Granting the applicants party status in advance of other non-appellant parties could be prejudicial to those who would expect to seek status at the CMC. LPASC also emphasized that it is the municipality’s decision that is under appeal, and it is the responsibility of the municipality to demonstrate that its decision satisfies the consistency/conformity test. The applicant’s position would be well represented through their original application that would include all necessary documents and materials which supported the positive decision made by the municipality.
In its Decision, LPAT denied the applicant’s early request for party status, stating:
“…While the Tribunal appreciates the special role of an applicant under the Planning Act, an applicant is treated the same as all potential parties under the LPATA and must answer to how its participation will ultimately assist the Tribunal…” (Paragraph 25)
And, “From a fairness and efficiency standpoint, the Tribunal finds the appropriate approach is to deal with such questions (party status requests and preliminary motions) in a one forum in a consistent manner, and that is at the CMC, when the Tribunal has a complete record and has determined all parties to the appeal(s).” (Paragraph 31)
“The decision reinforces the important role of the municipality as the decision maker who must ensure the application is consistent with and conforms with provincial and local policy, and who must be prepared to defend its decision through the appeal process,” says Mark Christie, LPASC Registrar. “And it shows that LPASC has a role to play in helping to ensure procedures benefit all parties and LPASC’s future cases.”
Early dispute resolution avoids LPAT appeal
A long-time homeowner in a rural setting had concerns about plans to develop an area immediately adjacent to his property. The site is in a small Ontario city with a population of less than 25,000 that is experiencing growth pressures due to its proximity to a major urban centre. While the site is within the settlement area, this large-scale greenfield development will expand the City into an area that is currently being used for farming. The homeowner is worried about the size of an apartment block proposed next to his house.
On April 17, 2018, the City approved a subdivision application and adopted an amendment to its Official Plan for a 40-hectare greenfield development put forward by a well-established developer in the region. A zoning by-law amendment was also approved for the site.
The subdivision application proposed 245 detached dwellings, 180 semi-detached and row houses, and two blocks of low-rise apartment buildings. The apartment blocks were proposed on the outer-edge of the site, on what is currently a farmer’s field. Adjacent to the proposed apartments were two existing low-rise homes.
The planning issue:
The homeowner adjacent to one of the apartment blocks, a resident for the past 42 years, was concerned with how the new five-storey, low-rise building, might affect his day-to-day living experience. Based on the approved zoning, the apartment buildings on the block beside him could be built with only a minimum setback from his property of three metres, and up to a maximum height of 20 metres.
The resident contacted LPASC to determine if he had a case for an appeal. LPASC helped to identify aspects of the planning application that were inconsistent with the transition policies of the City’s Official Plan. An appeal was filed with respect to the apartment block, based on its poor transition with the adjacent uses.
LPASC planners saw that there were alternative design opportunities that could keep the same number of units as were proposed in the overall development and provide a better transition between the development and the adjacent properties. LPASC facilitated meetings with the applicant and the municipality and proposed ways in which the plan could be changed.
Throughout the process, LPASC encouraged the appellant to be open to the opportunity for a mediated settlement, given there was good potential for the developer to adjust both the setback for the development and the building height.
Upon receiving the appeal, the municipality proposed an early dispute resolution process to the appellant and the applicant. By exercising this option under the Planning Act, the municipality was granted 75 days to resolve the issue at the local level without having to send the appeal to the LPAT, which normally must be submitted within 15 days.
Through the dispute resolution process, several design options were discussed with the developer. A site-specific zoning by-law for the apartment block was put forward to address the transition issues. Setback requirements moved from three metres (all sides), to 15 metres on the west property line, and six metres for the part of the south property line that approaches the west. The amendment also included an agreement that the building was to be constructed adjacent to the appellant would be no higher than three storeys.
LPASC’s suggestions for buffering features resulted in adding an eight-foot opaque fence and a cedar hedge on the west side of the site to the amended plans.
In the end, the municipality, the developer and the appellant were satisfied with the results of the early dispute resolution, and the appellant withdrew his appeal.
Important elements of the case
The 2018/2019 fiscal year was an informative first year for the Local Planning Appeal Support Centre as long-standing plans to create a public support centre for planning matters came to fruition. The Centre opened its doors to the public April 3, 2018.
The following highlights are organized by the quarter in which the majority of the work took place.
In its first quarter of operation, LPASC focused on setting up service capacity, establishing its governance structure and creating foundational policies and practices for key business processes.
Organizational Structure and Human Resources Strategy
Fundamental to the start-up of the agency was the establishment of an effective, high- performing team to deliver on LPASC’s mandate. LPASC’s organizational structure was created based on early analysis of the nature and volume of cases and the structure of comparable agencies. The structure included a minimum number of professional service providers (two planners, two legal counsel) and core positions providing operational support. LPASC’s initial staff complement was a mix of non-unionized, permanent, contract, and co-op student positions. A small team of ten, plus contract support, on an as-needed basis, was envisioned for the first two years of operation.
Other critical human resource initiatives implemented in the first quarter of operations are described below:
Key elements of operational support instituted
In addition to human resource supports, financial and back-office support systems and policies were put in place to support appropriate financial governance. Financial staff were trained on the accounting system, SAGE 2000 and financial policies, including Travel, Meals and Hospitality, were established in alignment with Ontario Public Service financial policies to ensure that financial transactions were managed consistently, efficiently and effectively.
Front line service begins
Immediately, upon opening the doors on April 3, LPASC was taking calls from clients and providing information and advice. Initially, the volume of inquiries was low and managed by the skeleton staff of one planner and one lawyer.
The focus of the second quarter of operation was primarily on the launch of an interim service guide, stakeholder consultation and public outreach.
Launch of Interim Services and Eligibility Criteria
Based on the preliminary analysis of client inquiries over the first quarter, the Centre developed an interim list of services which included information, advice, support and representation.
An interim guide was launched at the August conference of the Association of Municipalities of Ontario and was distributed widely to new clients and the stakeholder community. Recipients were invited to provide feedback in an online consultation form by October 2019.
LPASC identified two categories of services:
As a first step to supporting the public’s inquiries, LPASC provided information and general guidance which included:
When clients required in-depth service, LPASC provided:
Eligibility Criteria for Professional Services Established
Through broad consultation, LPASC created eligibility criteria to determine which cases it would take on, recognizing that it would only be able to provide professional planning and legal services for a limited number of cases. The primary measure of eligibility was the land use planning merit of the application or appeal, and whether it met the fundamental tests of consistency and conformity to provincial and local land use planning policy direction.
Public outreach campaign
LPASC dedicated resources towards attending community and industry events across Ontario to provide information on the land use planning and appeal system, advising the public on how they could be involved, and educating the public on the services offered by LPASC. (See section 6 for further details.)
Accountability framework in place:
By third quarter, client volumes had risen to near-service capacity levels and the Centre embarked on the strategic investment of a Case Management System and completed a strategic planning framework, a performance measurement framework and a three-year business plan.
Summary of stakeholder feedback
A wide cross-section of stakeholders provided feedback into LPAC’s consultation process. Feedback pointed to areas where greater clarification could be provided for items such as the credentials of our experts, the rules and practices of LPAT, and the Centre’s separation from LPAT. Comments also included the need for the Centre to help individuals early in the process, the value of informed residents for all in the system and the need for LPASC to also support municipalities and smaller developers.
Implementation of Case Management System (CMS) begins
LPASC developed a business case and procured a vendor, in October 2018, to produce a solution to streamline case management and reduce administrative tasks, saving time and enabling efficient and prompt service. In addition, the CMS would enable LPASC to track, analyze and report on performance metrics on cases and file resolutions.
Business requirements gathering commenced in the third quarter and continued through to mid- February 2019. Further development of the CMS was halted due to the announced pending closure of the Centre.
LPASC issued a request for service (RFS) in October 2018 to invite planning firms across the province to submit proposals to be included on a roster of planners that LPASC could call upon should it need to increase its capacity to meet client demand.
Planning services were to be provided in English and French. Four planning firms were invited to enter into a service agreement contract to provide planning services on an as needed basis. The four planning firms represented coverage across Ontario in northern Ontario (Thunder Bay), Ottawa, the Near North and Central Ontario.
Strategic planning framework and performance measurement
These products were developed through workshops with Board Directors, management and staff. The Centre created a strategic framework document to guide its three-year strategic plan. A performance measurement framework was also created in tandem to assist in measuring the impact of the Centre in meeting its goals of its strategic plan. The strategic planning framework and performance measurement model are outlined below in the annual report.
The elements of the strategic planning framework included:
As a respected partner, LPASC advances effective and meaningful participation in land use planning to create strong, sustainable and resilient communities.
LPASC provides free and independent professional land use planning information, advice and representation to Ontarians.
The performance measurement model measured the key performance indicators in the table below.
|1. Client satisfaction with LPASC’s services.||Client satisfaction survey||Clients rate LPASC services are rated 4 out of 5, or better, by clients.|
|2. Client satisfaction with LPASC’s web resources.||Client satisfaction survey||Clients rate LPASC web resources at 4 out of 5, or better, by clients.|
|3. Success rate of desired outcome.||Percentage of cases in which stated outcome of LPASC assistance results in desired outcome.||80%|
|4. Time and cost savings for all parties involved in land use planning and development process||Percentage of cases LPASC is involved with that are resolved without a hearing.||70%|
|5. Development reflects needs of community.||a. Percentage of cases where LPASC involvement results in outcomes that are aligned with provincial, regional, and municipal planning policies.
b. Percentage of municipalities served across the province
|6. Access to planning and appeals process||a. Number of inquiries/cases responded to.
b. Number of clients served through digital information
|Year over year increase|
At the beginning of the fourth quarter, client inquiries were picking up, the complexity of cases in which LPASC was involved were increasing, and the demand for public presentations was on the rise. By the second month, activity came to a sudden halt with the notice of closure.
As an entirely new agency, LPASC developed three primary communications and outreach goals.
Reaching the public
LPASC’s first step in reaching the public was to create web resources that provided basic information the public needed to begin to understand the planning process. Planning guides, a glossary, and frequently asked questions, were posted within the first few months of operations.
Since a member of the public can find themselves facing a planning matter at any time, the most effective strategy to reach potential clients is to be visible at the point when they first begin engaging in planning matters, i.e., speaking with their municipality, councilor, member of parliament or when searching for information online. Three primary marketing approaches were implemented as follows:
Client surveys confirmed that this approach was effective with 40 percent of respondents reporting that they learned of LPASC through web searches and 17 per cent indicating that they were referred from their municipal office.
Outreach to community associations resulted in public presentations and opportunities for media relations.
Given that stakeholder referrals were a primary way for the public to learn about LPASC, engaging stakeholders in the consultation on services and providing ongoing updates on the Centre’s progress was a priority. Highlights of stakeholder communications are set out below:
Summary statistics of outreach initiative
Over the course of 2018, LPASC reached an audience of more than 100,000 through two public conferences, three presentations with stakeholders, four municipal and community association presentations, media coverage and thousands of visits to the LPASC website.
The feedback from clients who have benefitted from the LPASC services was overwhelmingly positive, demonstrating that the LPASC approach to service was highly valued.
Examples of client testimonials:
“The process is very complicated…the breadth is not at all accessible to the average taxpayer. It is a system that requires a lawyer and professional planner to have any chance of getting the right evidence to support the appeal.”
“Individual residents have a difficult time navigating this system. Nice to have someone who puts it in layman terms.”
“We need access to local planners to be involved in the process.”
“You are providing a very valuable service to ratepayers who, in the past, have been at a disadvantage in dealing with development projects.”