Update on Bill 23 (More Homes Built Faster Act, 2022): Royal Assent and Key Changes from First Reading

Gowling WLG has been monitoring the developments of Bill 23 (the More Homes Built Faster Act, 2022) closely. On Nov. 28, 2022, Bill 23, as amended by Standing Committee, received Royal Assent.

You will recall that Bill 23 was introduced as a part of the Ontario government's larger Housing Supply Action Plan, aiming to have 1.5 million homes built over the next 10 years. Since First Reading on Oct. 23, 2022, it has undergone some key changes, particularly in regards to three statutes it affects: the City of Toronto Act, 2006, the Development Charges Act, 1997, and the Planning Act.

The main updates are as follows:

• Exterior design not a matter of site plan control, with extremely limited exceptions – Prior to the passing of Bill 23, both the City of Toronto Act, 2006 and the Planning Act contained provisions that allowed site plan control to address matters relating to exterior design, "including without limitation the character, scale, appearance and design features of buildings, and their sustainable design", provided that the official plan and by-law establishing the site plan control area contained provisions relating to such matters. Bill 23, as passed, has removed exterior design from part of site plan control, with extremely limited exceptions.
  
  The original version of Bill 23 provided that exterior design would no longer be a matter subject to site plan control, except to the extent it related to exterior access to a building containing affordable housing units, or any part of such a building. Bill 23, as passed, provides a new carve out for matters relating to building construction required under a by-law referred to in section 108 or 108.1 (i.e. in relation to green roofs or alternative roof surfaces, and environmental standards in the Building Code). In addition, site plan control may apply to land or adjoining highways under the City's jurisdiction, only to the extent the appearance "impacts matters of health, safety, accessibility, sustainable design or the protection of adjoining lands".
  
  In all, matters of character, scale, appearance and design have been effectively removed from site plan control. Mirroring changes have been made to section 41 of the Planning Act.
• Transitional provisions for development charges for rental construction and additional units – Bill 23, as passed, provides a new addition in the transitional provisions for section 26.2 of the Development Charges Act, 1997, dealing with reductions to development charges for rental construction and additional units, to address agreements made with a municipality under section 27. The original version of Bill 23 provided that the reductions would not apply in respect of development charges for which a building permit was issued before Nov. 28, 2022 (i.e. the day the amendments came into force). Now, clarifications have been to indicate that the reduction applies to any part of a development charge payable under an agreement under section 27 that is in respect of a prescribed development and was entered into before Nov. 28, 2022, other than a part of the development charge payable under the agreement before the day the development was prescribed. The Lieutenant Governor in Council may make regulations prescribing developments for the purpose of this section.
• Change to start date of development by-law in determining reduction – The original version of Bill 23 provided reductions for development charges imposed by a by-law passed on or after June 1, 2022 and before the day Bill 23 receives Royal Assent. This has now been expanded to include development charge by-laws passed on or after January 1, 2022. For clarity, the reductions and associated 5-year phase in of Bill 23 do not apply to development charge by-laws passed on December 31, 2021 or earlier.
• Removal of two-year moratorium on Planning Act applications – Prior to Bill 23, the Planning Act prohibited requests for official plan amendments to be made within two years of a new official plan or secondary plan coming into effect. The moratorium has been removed in their entirety. Similarly, prohibitions on applications to amend zoning by-laws within two years of council repealing and replacing the by-law, or for a minor variance, have also been repealed.
• Allowance of third-party appeals for Official Plans and Zoning By-laws – In the original version of Bill 23, proposed changes to the Planning Act would have resulted in significant restrictions to third party appeals to the Ontario Land Tribunal of official plans and amendments, zoning by-laws and amendments, consents, and minor variances. In particular, it would have imposed similar restrictions for appeal rights for these planning instruments as already exist for plans of subdivision, and would create a prescribed list of "specified persons". These proposed changes have been withdrawn for appeals of official plans and amendments, and zoning by-laws and amendments. For these planning instruments only, the original pre-existing rights to appeal for third parties are maintained, as per the Planning Act.
  
  Significantly, third parties no longer have the right to appeal consents and minor variances. Any consents or minor variances that has been appealed but have not yet been scheduled by the OLT for a hearing on the merits as of Oct. 25, 2022 will be dismissed.
• Registration of community benefit charge agreements – Section 37(6) of the Planning Act provides that a municipality that has passed a community benefits charge by-law may allow an owner of land to provide the municipality facilities, services or matters required because of development or redevelopment in the area to which the by-law applies. Bill 23 now allows for an agreement to be entered into between the municipality and land owner to this effect, and for such agreement to be registered on title.

While Bill 23, as amended by Standing Committee, has received Royal Assent, there are a number of regulations that still need to be promulgated. The full effect of the changes to the planning and development regime in Ontario remain to be seen. Updates will be available as new information is released.