More and more, municipalities are attempting to impose conditions at the site plan approval stage that are well outside of their lawful jurisdiction to require. Often, they more closely resemble subdivision conditions than permitted site plan conditions. Very often, these impose a serious financial and time cost on developers.
Knowing your rights when it comes to what a municipality can and cannot demand at site plan approval is imperative. It is up to you, your land use planners and your legal team to make sure you are not giving a municipality more than you need to.
Understanding the conditions of a site plan approval application
Upon receiving a site plan approval application, a municipality may approve a site plan with conditions that are listed in subsection 41(7) of the Planning Act.[1]
The list of permitted conditions is finite.
Municipalities do not have the authority to include conditions that fall outside the ambit of subsection 41(7)(a) of the Act. Municipalities we have spoken to on this, often dispute any limitation on their legal authority. This position is incorrect.
For a municipality to have jurisdiction to include a condition for the approval of a site plan, the conditions must be specifically identified in subsection 41(7)(a). Moreover, municipalities cannot impose conditions falling outside the scope of subsection 41(7)(a) via other legislative provisions, such as Section 42.
Additional conditions beyond those listed in subsection 41(7) can be imposed only if both parties have mutually agreed upon them in their site plan agreements. This makes it important to consult a lawyer before agreeing to conditions.
The Ontario Superior Court has previously held that "any authority of the City to impose conditions on site plan approval can only flow from the express provisions of Section 41 of the Act." It further ruled that this specific provision is to be "restrictive, rather than discretionary."[2] This principle has since been consistently adhered to in all subsequent decisions made by the Ontario Municipal Board (OMB), the Local Planning Appeal Tribunal (LPAT) and their successor, the Ontario Land Tribunal (OLT).
Examples of conditions beyond a municipality's jurisdiction
Examples where the Tribunal, or its predecessor, has ruled that a condition is beyond the scope of a municipality's jurisdiction include:
- The imposition of a public use, like public parking, on a privately-owned site via condition.
- The free giving of a right-of-way to adjoining properties that are privately owned.
- The construction management process including the dictation of how construction will proceed and defining steps to mitigate the impact of construction.
- The imposition of parkland dedication at site plan approval, resulting in the dedication of a portion of the property's shoreline to the municipality for the purposes of extending a waterfront trail.
These are examples of rulings only, and the true scope of what municipalities are seeking goes well beyond this small list. For a municipality to include a condition for the approval of a site plan, the conditions must be explicitly listed in Subsection 41(7)(a) of the Planning Act.
If you wish to discuss how the Planning Act might impact your property rights or development, please don't hesitate to contact our team at Gowling WLG.
[2] Polla v Toronto (City) Chief Building Official, [2000] OJ No. 4399 at para 12.