CONTENTS
Thursday 29 September 1994
Planning and Municipal Statute Law Amendment Act, 1994, Bill 163, Mr Philip / Loi de 1994 modifiant des lois en ce qui concerne l'aménagement du territoire et les municipalités,
projet de loi 163, M. Philip
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
Bisson, Gilles (Cochrane South/-Sud ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
*Haeck, Christel (St Catharines-Brock ND)
Harnick, Charles (Willowdale PC)
Malkowski, Gary (York East/-Est ND)
Murphy, Tim (St George-St David L)
Tilson, David (Dufferin-Peel PC)
*Wilson, Gary (Kingston and The Islands/Kingston et Les Iles ND)
*Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Eddy, Ron (Brant-Haldimand L) for Mr Murphy
Grandmaître, Bernard (Ottawa East/-Est L) for Mr Chiarelli
Hayes, Pat (Essex-Kent ND) for Mr Malkowski
Johnson, David (Don Mills PC) for Mr Harnick
McLean, Allan K. (Simcoe East/-Est PC) for Mr Tilson
White, Drummond (Durham Centre ND) for Mr Bisson
Wiseman, Jim (Durham West/-Ouest ND) for Ms Harrington
Also taking part / Autres participants et participantes:
Ministry of Environment and Energy:
Jackson, Jim, counsel, legal services branch
Ng, Wilfred, director, approvals branch
Willis, Sheila, assistant deputy minister, regional operations division
Ministry of Municipal Affairs:
Hayes, Pat, parliamentary assistant to minister
McKinstry, Philip, acting director, municipal planning policy branch
Ross, Elaine, solicitor, corporate resources management
Clerk / Greffière: Bryce, Donna
Staff / Personnel: Mifsud, Lucinda, legislative counsel
The committee met at 1016 in committee room 2.
PLANNING AND MUNICIPAL STATUTE LAW AMENDMENT ACT, 1994 / LOI DE 1994 MODIFIANT DES LOIS EN CE QUI CONCERNE L'AMÉNAGEMENT DU TERRITOIRE ET DES MUNICIPALITÉS
Consideration of Bill 163, An Act to revise the Ontario Planning and Development Act and the Municipal Conflict of Interest Act, to amend the Planning Act and the Municipal Act and to amend other statutes related to planning and municipal matters / Projet de loi 163, Loi révisant la Loi sur la planification et l'aménagement du territoire de l'Ontario, la Loi sur les conflits d'intérêts municipaux, et modifiant la Loi sur l'aménagement du territoire et la Loi sur les municipalités et modifiant d'autres lois touchant des questions relatives à l'aménagement et aux municipalités.
The Chair (Mr Rosario Marchese): I call the meeting to order.
Mr Pat Hayes (Essex-Kent): Mr Chair, if I may, we have a government motion dealing with section 61, a motion dealing with the septic tank issue. I believe it's a concern for all three parties and all members, and it has support, at least in principle, from AMO because it is a permissive amendment.
Also, we have people here from the Ministry of Environment and Energy. They're here to assist and explain the bill, and if the members choose, I would be asking them to walk this bill through so everyone understands it as thoroughly as possible. I would ask for unanimous consent that we move up section 61, the government motion to amend, to deal with this very important issue.
The Chair: Mr Hayes is moving a motion, first, to stand the others down and bring this one forward, and second, to deal with a matter that isn't properly within the scope of this bill. So we have two things to do. If there's unanimous consent to bring it forward, we can hear the arguments, both from the staff and yourselves, as to whether you want to deal with it and have it included in this bill. Okay?
Mr Alvin Curling (Scarborough North): Just a matter of explanation, Mr Chair: If there is unanimous consent to bring it forward -- I think the motion here is to decide whether we will bring it forward.
The Chair: Then let's deal with that first. Is there unanimous consent to stand the other matters down and deal with the motion that Mr Hayes would like to introduce?
Mr Bernard Grandmaître (Ottawa East): Mr Chair, can I try and help you and my colleagues?
The Chair: Absolutely.
Mr Grandmaître: Why can't we agree now to hear from staff, and then we'll take a second vote, if we need a second vote, to deal with section 61? Instead of asking for the vote now --
The Chair: You see, you've got to introduce the motion before you can even talk about it. In essence, we have to not only stand the other matters down to deal with this, but in doing so, we then have to deal with the motion.
Mr Jim Wiseman (Durham West): We need two unanimous consents.
The Chair: They are concurrent, in my view.
Mr Grandmaître: I know this, but could we all agree, Mr Chair, that we should hear from staff first, and then we'll deal with section 61?
Ms Christel Haeck (St Catharines-Brock): In order to debate it, you have to move it.
Mr Grandmaître: We're not going to debate it. We're going to listen to staff, and then we'll need unanimous consent.
The Chair: The clerk is advising me on this matter and suggesting that we need unanimous consent to bring this matter ahead of all the other matters. Is there unanimous consent to do so?
Mr Grandmaître: Unanimous consent to listen to staff.
Mr Wiseman: That's the same thing.
Mr David Johnson (Don Mills): Can I just direct a question through to the clerk, who I guess is the arbitrator of proceedings here, in a sense?
The Chair: I'm the arbiter. She's the adviser to the Chair.
Mr David Johnson: We trust the adviser, though.
The Chair: Of course.
Mr David Johnson: Is there such a procedure as permitting staff simply to speak and explain rationale?
The Chair: Ms Bryce tells me that if we want to bring the matter forward, then we would be speaking to that particular issue -- of why we would be bringing this forward -- and that would be the debate on that matter, as opposed to the contents of the amendment.
Mr David Johnson: Can I just ask why we need to deal with this now rather than in the regular order it would come up, because there are staff members here, and how many staff members? I'm just a little puzzled. Obviously, it's an important issue that we want to deal with, but I'm just a little puzzled why we wouldn't deal with it in its natural order.
Mr Hayes: As Mr Johnson has said, it is a very important issue, and it's an issue that people are asking us to pursue. It's a fairly lengthy amendment and we feel it's going to take some time, maybe more than some other parts of this legislation, and to get this, hopefully, implemented, there's still a fair amount of work to do by staff. We feel it's that important issue we all have concerns with and want to pursue, and that's why I'm here this morning asking for consent to deal with this.
Mr Chair, I know you have procedures to follow, but as far as I'm concerned, if you were to ask for unanimous consent so all you would be doing is allowing staff to come forward to explain it, then after that you could make whatever decision you choose to make.
Mr David Johnson: Mr Parliamentary Assistant, once it's been explained, would it then be your recommendation that we revert to where we are at this time within the bill without coming to a final conclusion on the septic system?
Mr Hayes: No. We're asking to deal with this. I'll make another suggestion to both opposition parties. Even though I have the staff here to explain it, if you need a little more time, maybe we could deal with it right after lunch, for example. I'm willing to do that, if you need more time to talk to people in your office or whatever.
Mr David Johnson: How many staff are here?
Mr Hayes: There are four, I guess, from the Ministry of Environment and Energy. They may all be speaking, I guess whoever can answer the questions, depending on the questions.
Mr David Johnson: You're asking us to bring this forward and deal with it specially. Are there any other aspects of this bill, during the course of the debate on the bill, that you'll be asking us to bring forward and deal with?
Mr Hayes: No.
Mr Allan K. McLean (Simcoe East): I have a further question for clarification. If we deal with this now, which may take most of the morning, we are going to have approximately 100 amendments left by the end of the day, which is what we have been allotted as sitting time. What do you anticipate will happen with those amendments that are not dealt with today? Will this committee meet after the Legislature resumes and continue to deal with them one by one?
Mr Curling: Mr Chairman, this is a very technical thing, and I want the attention of the Chairman here.
The Chair: You've got my fullest attention, Mr Curling, as always.
Mr Curling: Well, if that is your fullest attention -- I'm telling you it's a technical matter. I have no problem with us debating whether we should bring it forward or not, for that debate to happen. The motion is on the floor for whether we should bring this forward or not, and I have no problem with that, to bring it forward for us to debate whether it should be debated as a priority, the second stage you're talking about at 61.
The Chair: Let me propose this: If people are in agreement to move this matter forward, that would be the first step. Obviously, some of you don't want to commit yourself to the second step, of the introduction of the motion. What I as the Chair will allow is that rather than reading the amendment into the record, because once you do that it becomes the property of the committee, rather than doing that we will allow the staff to speak to the issue.
Mr Grandmaître: But you just told us, Mr Chair, that you had to read the motion properly to make it legal.
The Chair: That's what I'm saying, that what I will do is allow us not to have to read that into the record but rather have staff speak to the amendment without having to read it into the record.
Mr Grandmaître: And we can do this?
Mr Wiseman: You can do anything with unanimous consent.
Mr Grandmaître: No, you can't.
The Chair: Ms Bryce has given some wise counsel. We can read the motion into the record and then people can debate whether they feel it should be part of this bill. So that's all we would be voting on: We would be voting, once we've heard explanations, on whether or not this amendment can be properly part of this bill, by unanimous consent. If there's no unanimous consent, this motion would not, after debate, have to be dealt with.
Mr Curling: Mr Chairman, let me deal with that point. You are bringing in amendments by the day, by the minute, by the second. Here is another one that just came in. Just put it in as a replacement and say, "Here's another amendment," and let's proceed. I don't know why we're debating to have this special one. Yesterday, we had no debate about those that were sliding in every second. We have one that is coming in now and we want a debate about whether it should come in. It's normal. Put the amendments on the table. When we get to 61, we deal with it. I don't know why we need unanimous consent to find if it should come in here. Anyone can come in here with an amendment.
The Chair: Mr Curling, let me explain. The problem with the motion is that it's not within the scope of this bill, it's outside the scope of the bill, and that is why we need unanimous consent to make it part of this bill. If you're saying at this moment, without hearing the arguments, that you want it that way, that's fine; that would make it easier. But let's proceed, based on that feeling, and move on. Can we do that?
Mr Grandmaître: Mr Chair, you're saying that this amendment in no way is part of this bill, right?
The Chair: That's what I said, yes.
Mr Grandmaître: If you look at Liberal motion number 173, we have an amendment that says:
"I move that section 52 of the bill be amended by adding the following section to the Municipal Act:
"`223.2(1) Despite the Environmental Protection Act, the council of a local municipality may pass'" --
The Chair: I understand that. We would rule that out of order, as we would this; we'd have to deal with that in the same way we're dealing with this.
Mr Grandmaître: You would have to rule this out of order?
Mr Curling: So you're bringing it forward to rule it out of order.
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The Chair: Do you really want to debate whether this is within the scope or not, or do you want to hear the arguments and move on? We can do both, but I would advise us to simply move on. If you feel this is within the scope, that's fine: We'll hear the arguments and then introduce it and have a vote one way or the other. All right?
Mr Wiseman: I guess we're really talking about the urgency of the debate here. We have signalled to the Association of Municipalities of Ontario that we are prepared to move this amendment. We have given the amendment to them, they've seen it, they have commented in a news release that they're pleased to see it, but there's a problem -- really, two.
They would like to know, sooner rather than later, what the committee's intentions are on this issue so they can start planning their own work. But the problem here is that we have to open up the Environmental Protection Act to do this. In order to open up the Environmental Protection Act in this committee, we have to have unanimous consent. Because we are acquiescing to the request of AMO to be very clear about the intentions of this committee, that's why we're asking to do it this morning.
Basically, what we're doing is trying to signal that we are prepared to move ahead with this amendment; this is the amendment we're prepared to move ahead with. To do this, it takes two stages: First, we need to have unanimous consent of this committee to move forward, to place this section on the agenda this morning; second, we will need unanimous consent of the committee to pass this amendment. Mr Grandmaître, your amendment would also need unanimous consent to be introduced because it's an amendment to the Environmental Protection Act, and if it doesn't get unanimous consent the Chair is forced to rule it out of order.
What we're asking for now is unanimous agreement from the committee to look at this, unanimous consent to bring it on to the table now, to bring the staff forward and hear what they have to say so that opposition and government members can discuss it. And then the next step would be to ask for unanimous consent to pass it.
Mr Grandmaître: Mr Chair, you would need consent of this committee to deal with section 52, the Liberal amendment, when we reached section 52. Now we're jumping from 10 to 52, and this is why we would need consent of this committee.
Mr Wiseman: I understand that, Mr Grandmaître. What we're trying to do is facilitate an operation in another level of government so that they can get on with it.
The Chair: I'm not sure -- I'm trying to understand the resistance at this moment. First of all, we're trying to accomplish two things, and Mr Wiseman was getting to repeating that. First, we want to move this matter up -- that's what the parliamentary assistant has suggested -- and that requires unanimous consent. That's one thing. The second problem we have identified is that this is not within the scope, because it changes what is there substantially. To deal with that, we need you to hear arguments about why this should be part of this bill. That requires unanimous consent. Once we've got that, then we move to a vote on that particular amendment.
So we need those two things. People want to deal with it. Let's have unanimous consent to move this matter up and then let's hear the arguments. If there's unanimous consent that this is something that is within the scope, then we'll move to the vote. Is that okay?
Mr Grandmaître: If you say, Mr Chair, that there are major changes, is it in order?
The Chair: But I'm asking you, let us hear the arguments, and if you feel after hearing the arguments that it's within the scope, once we've done that and we get unanimous consent, we can move on to the other matter, that is, the vote on this.
Mr Curling: Can I ask if this is the same thing you said had to go back to cabinet? When we asked previously, you said, "It has to go to cabinet to include this." Lo and behold, cabinet met, and such a surprising thing, that overnight we got it now to -- is this the same one?
Mr Hayes: Yes, this is the same one, but it wasn't done overnight. It took a considerable length of time to make a decision on this.
Mr Grandmaître: Well, we received it at 4:40.
Mr Hayes: You received it shortly after I received it.
Mr David Johnson: Mr Chairman, when it comes down to it, as long as we're not going to make a habit of bringing things forward and going back and forth --
Mr Hayes: No, we're not.
Mr David Johnson: We have to deal with it either now or later. Personally, from that point of view, I really don't care and I'll grant you my consent to do that.
But I still am not convinced about why we're really doing this. Mr Wiseman has said we have to open up the Environmental Protection Act. I think he's been trying to help us, but in actual fact, section 61 already does amend the Environmental Protection Act. It says the act is amended by inserting -- it's a small amendment, but there it is; it already happens. I'm not really too sure what the rush is to deal with this today, but given that we have to deal with it at some point, I guess today is as good a time as any.
And I think I do buy your theory that this is a substantial change and, in that event, apparently the procedure is that unanimous consent is required. I know that AMO is interested in this, and whether we deal with it now or whether we deal with it in its natural course, I'd be prepared to give my consent that we do deal with it because I know this is of concern to municipalities.
The Chair: Is there unanimous consent, therefore, to move this matter up?
Interjections: Yes.
The Chair: Okay. Now what we are going to do is that once we read it into the record, we can hear arguments from the different members about why this should be part of the bill, all right? That will require unanimous consent. Mr Hayes, go ahead.
Mr Hayes: I move that section 61 of the bill be struck out and the following substituted:
"61(1) The Environmental Protection Act is amended by adding the following sections:
"Bylaws re: sewage system programs
"81.1(1) A municipality in a class prescribed by regulation may, by bylaw, establish a sewage system program prescribed by the regulations to govern sewage systems within the municipality's jurisdiction.
"Fees
"(2) The municipality may by bylaw provide for fees with respect to any matter related to the sewage system program.
"Same
"(3) A bylaw under subsection (2) may fix fees or establish a method of calculating fees and may exempt any person or class of persons from the fees.
"Lien
"(4) The municipality that imposes a fee under this section shall have a lien on the land for the amount of the fee upon registration in the proper land registry office of a notice of lien.
"Amount added to collector's roll
"(5) In default of payment of the fee, the clerk of the local municipality in which the land is situate shall, upon being notified in writing by the municipality that imposed the fee, add the amount of the fee to the collector's roll and it shall be collected in the same manner as municipal taxes.
"Collection
"(6) A local municipality that collects a fee as municipal taxes shall send that amount to the municipality that imposed the fee.
"Land in territory without municipal organization
"(7) A municipality that imposes a fee under this section in respect of land in territory without municipal organization shall have a lien on the land for the amount of the fee and the amount shall be deemed to be a tax under the Provincial Land Tax Act.
"Inspectors deemed to be provincial officers
"(8) Persons authorized by the municipality to carry out inspections respecting sewage systems under the sewage system program have all the privileges, powers and duties of provincial officers under part XV.
"Same
"(9) For the purposes of subsection (8), `regulations' in part XV includes bylaws passed under this section or section 81.2.
"Bylaws prohibiting contraventions
"81.2(1) A municipality may pass a bylaw providing that" -- excuse me, Mr Chair. I withdraw everything I've said.
Interjections.
The Chair: Strike it from the record. Mr Hayes, go ahead.
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Mr David Winninger (London South): Mr Chair, before he reads it, maybe we could clarify for certain which document he's reading from.
The Chair: It's numbered 188 and it's got a little "C" on the left-hand side. It's the one that was filed to us this morning, and that's what we distributed.
Mr Hayes: It says "replacement." I apologize to the committee for not looking closer.
Mr Curling: Accepted.
Mr Hayes: Thank you.
I move that section 61 of the bill be struck out and the following substituted:
"61(1) The Environmental Protection Act is amended by adding the following sections:
"Bylaws re: sewage system programs
"81.1(1) A municipality in a class prescribed by regulation may, by bylaw, establish a sewage system program prescribed by the regulations to govern sewage systems within the municipality's jurisdiction.
"Fees
"(2) The municipality may by bylaw provide for fees with respect to any matter related to the sewage system program.
"Same
"(3) A bylaw under subsection (2) may fix fees or establish a method of calculating fees and may exempt any person or class of persons from the fees.
"Lien
"(4) The municipality that imposes a fee under this section in relation to a sewage system on land shall have a lien on the land for the amount of the fee upon registration in the proper land registry office of a notice of lien.
"Amount added to collector's roll
"(5) In default of payment of the fee, the clerk of the local municipality in which the land is situate shall, upon being notified in writing by the municipality that imposed the fee, add the amount of the fee to the collector's roll and it shall be collected in the same manner as municipal taxes.
"Collection
"(6) A local municipality that collects a fee as municipal taxes shall send that amount to the municipality that imposed the fee.
"Land in territory without municipal organization
"(7) A municipality that imposes a fee under this section in respect of land in territory without municipal organization shall have a lien on the land for the amount of the fee and the amount shall be deemed to be a tax under the Provincial Land Tax Act.
"Inspectors deemed to be provincial officers
"(8) Persons authorized by the municipality to carry out inspections respecting sewage systems under the sewage system program have all the powers and duties of provincial officers under part XV.
"Same
"(9) For the purposes of subsection (8), `regulations' in part XV includes bylaws passed under this section or section 81.2.
"Bylaws prohibiting contraventions
"81.2(1) A municipality may pass a bylaw providing that any person who contravenes a bylaw passed by the municipality under section 81.1 is guilty of an offence.
"Penalties
"(2) The penalties set out in section 322 of the Municipal Act apply to bylaws passed under this section.
"(2) The act is amended by adding the following section:
"Protection from personal liability
"82.1(1) No action or other proceeding for damages or otherwise shall be instituted against an officer or employee of a municipality for an act done in good faith in the execution or intended execution of any duty or authority under this part or for any alleged neglect or default in the execution in good faith of any such duty or authority.
"Judicial review etc
"(2) Subsection (1) does not apply to prevent an application for judicial review or a proceeding that is specifically provided for in this act.
"Municipality not relieved of liability
"(3) Subsection (1) does not relieve a municipality from liability in respect of a tort committed by a person referred to in subsection (1) to which the municipality would otherwise be subject and a municipality is liable in respect of such tort in a like manner as if subsection (1) had not been passed.
"(3) Subclause 156(1)(d)(i) of the act is amended by striking out `agreement or' in the sixth line and substituting `agreement, sewage system program or'.
"(4) Clause 156(1)(e) of the act is amended by striking out `agreement or' in the seventh line and substituting `agreement, sewage system program or'.
"(5) Clause 176(6)(b) of the act is amended by striking out `cleaning' and substituting `inspection, cleaning'.
"(6) Clause 176(6)(j) of the act is repealed and the following substituted:
"(j) respecting the records to be kept and the reports to be made by any class of persons;
"(7) Subsection 176(6) of the act is amended by adding the following clause:
"(n) respecting municipal programs to govern sewage systems, including, without limiting, the generality of the foregoing regulations,
"(i) providing for the issuance by municipalities of certificates of approval under part VIII,
"(ii) providing for the issuance by municipalities of permits under part VIII,
"(iii) providing for the making of orders respecting sewage systems under this act,
"(iv) providing that members of any class of officers and employees of municipalities shall be deemed to be directors for the purposes of this act and the regulations in relation to programs established under section 81.1, and excluding from any such class all members who have not been designated for the purpose by the relevant municipality,
"(v) respecting conflicts between agreements entered into under section 81 and bylaws passed under section 81.1,
"(vi) respecting the territorial application of any class of bylaws passed under section 81.1."
The Chair: We have now heard the motion. We can hear arguments now from the members with respect to this issue, as to why it is or isn't out of order. Once we've done that, we can have a vote on unanimous consent to consider that motion.
Mr McLean: We already gave unanimous consent. We wanted to hear them.
The Chair: No, that was just to bring it forward, Mr McLean.
Mr McLean: Then let's hear them.
The Chair: Do we have speakers, or do the members want to listen to staff? What do you want to do?
Interjections.
The Chair: All right, we'll listen to staff.
Ms Sheila Willis: Good morning. I'm Sheila Willis, assistant deputy minister of the operations division for the Ministry of Environment and Energy. I'm pleased to be here this morning to try and explain what is contained in this amendment.
In responding to a number of concerns raised at this committee, our ministry attempted to craft the legislative framework which would in future enable us to pass a regulation permitting the kind of municipal action that has been talked about at this committee with regard to septics, their installation and inspection.
Jim Jackson and Myra Hewitt are here from our legal department to speak to the details of the amendment, and Wilfred Ng, whom you've heard from before, our director of approvals, is here to speak to any of the details about a subsequent program and the various aspects of it, if you want to go into that.
With that, I'm prepared to answer questions, or we can go through it clause by clause to discuss the kinds of powers intended in this amendment.
The Chair: Let's leave it open to the members. Do the members have questions of staff, questions of the detail that's within that motion?
Mr McLean: I have a couple of questions. I'd like to know if this is going to refer to rural schools in Ontario. Will this be part of the installation and inspections they would go under? I guess the basis of my question is: Are rural schools going to be able to put in systems? Will they be able to continue to expand the schools for rural Ontario?
Ms Willis: This would in no way change the ground rules and conditions around which septics are currently approved for installation or expansion. Those provisions already exist and those guidelines already are in place in our ministry, so this would not change any of those considerations.
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Mr McLean: But you had said it's going to affect the installation and inspections. In what way is it going to affect the installations?
Ms Willis: It may or may not affect any part of the sequence of events that takes place, from a land use approval to the installation and inspection of installation or reinspection at some point in the future. We're not at this point able to anticipate the elements that would go into a municipal program, so we have provided here for a wide range of powers. It would be our intention, following passage of this if it were successful, to embark on a consultation with various stakeholders, including municipalities, who would eventually carry out the program, to determine what aspects need to be incorporated. That program would then be defined in a regulation, which would be passed at some point in the future, once that consultation is complete. When that regulation is passed, it would then be optional for municipalities to participate, or not, in the program.
At this point, it's difficult to determine or anticipate which elements of a program would be included, so we've had to provide for a range of activities that might then come under the municipal purview.
Mr Jim Jackson: I'm Jim Jackson. The principal possible change would be that the approving authority that actually issues the certificates of approval for septic tanks or for amendments, changes in sewage systems, might switch from being the current one, a local board of health for example, to a local municipality or an upper-tier municipality. That would depend on how the program was designed and what the existing municipalities that were involved in the existing program wanted to do.
Mr McLean: It says that the municipality "may by bylaw." What would an unorganized territory do?
Mr Jackson: The Environmental Protection Act, unlike the Municipal Act, includes boards of health within the definition of municipalities; and in the unorganized territories, either boards of health administer part VIII, pursuant to agreements under the existing section 81, or the ministry administers it directly if the board of health has determined it doesn't want to participate in the program.
Mr McLean: So the minister himself could dictate whether an unorganized territory is going to be covered under this septic system.
Mr Jackson: A director who was an employee of the Ministry of Environment, yes.
Mr McLean: The director could do that. He could direct that that be --
Mr Jackson: The director determines, when somebody submits an application to him, whether or not an approval should be granted.
Mr Ron Eddy (Brant-Haldimand): Thank you for appearing this morning to speak to this very important matter. Indeed the Liberal caucus was going to present an amendment, not nearly as complete as this framework, but to give municipalities permissive legislation to regulate installation of septic tank systems and inspection. Our friends at AMO are very anxious, or are agreeable, I guess, that there be permissive legislation.
I'm familiar with the present system. MOE is responsible for inspecting the installation of septic tanks and septic systems. They have delegated that, in many cases, to boards of health, to municipalities where boards of health have become committees of, for instance, regional council, and, I believe, in two cases, conservation authorities.
Now in 81.1(1), "a municipality in a class prescribed by regulation may, by bylaw,..." I'm trying to figure out how this fits. I believe you said it will be possible, as determined locally, whether it be the local municipality or the upper tier that can take that on -- I guess we need to know how they'll be prescribed. Will municipalities be prescribed perhaps on request? They'd have to pass a bylaw. Would that be the upper tier in some cases, and in some cases the lower tier? Will whichever tier is prescribed be allowed to delegate it to the same group that presently inspects the installation, or how do you see it? I'm not clear on just how it will work in comparison to the present system of inspection of the installation.
Mr Jackson: Whether or not it would be delegated from one level of the municipality to another would depend on how the program was designed after consultation with the municipalities. It may be that a delegation would be unnecessary because the prescribed municipality would be the municipality that was actually going to do the work, or the board of health. It may be unnecessary to have any cross-delegations between the municipalities.
Mr Eddy: But it won't necessarily be tied in with the present system of inspection. I would think it could and maybe should, although I guess a municipality would have a choice.
Mr Jackson: This is designed so that it can be tied in or could replace it and flip it over from being done under an agreement to being done under the program, or, depending on how the program is structured, you could continue to have agreements that dealt with part of the whole part VIII program and programs under the new provisions that dealt with the balance of it, including reinspection. There's a limitation on the reinspection powers, a limitation on the authority that's available currently. This expands the authority to cover all reinspections.
Mr Eddy: Let's use an example, the region of Peel. At present, I believe the region of Peel has dissolved its board of health. It has a committee of council; therefore the regional municipality is responsible for the inspection of installation tanks. In Peel, we might get one of the three municipalities that is interested and wishes to proceed to pass such a bylaw, for instance Caledon. If Caledon wishes to go ahead with this, it'd be through a consultation process with MOE --
Mr Jackson: And the regional municipality too, because you wouldn't want the two municipalities conflicting with each other.
Mr Eddy: As to who would do it. It could be that Caledon decides to do it, or they could have the region of Peel do the work in the Caledon area.
Mr Jackson: That's right.
Mr Eddy: Okay, I see. That's helpful.
Mr Winninger: Just one question concerning subsection (3) of the change to section 81.1. Under what circumstances would you contemplate the municipality exempting certain persons or classes of persons from the fees?
Mr Jackson: It's not known. That would depend on the results of consultations with municipalities. But under the Municipal Act now, municipalities do have authority to in effect exempt from fees by providing financial assistance to a property owner. Perhaps old-age pensioners who didn't have any other income might be. If they wanted to, they could do that. That would be up to them.
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Mr Curling: I just want to ask the deputy, or is it the assistant deputy?
Ms Willis: ADM. Thank you for the promotion, though.
Mr Curling: I know you're quite capable.
I'm sure your ministry has been following the act very closely, and I'm sure your ministry was anticipating the fact that this part on the septic tank area should have been included. It wasn't included, and now somehow the cabinet has gotten its act together and wants to put it in.
Do you feel it's important that not only it is put in but also that it should be debated in detail? I won't be asking you detailed questions on this. Why do you feel we should be debating this right now, that we should accept it and must debate it right now? Because it is relevant for the things we will do in the next sections?
Ms Willis: I can't speak to the second part of your question. That's the dynamics of this committee.
I can comment on the ministry's decision regarding this issue. We share the concern that many people have brought to this committee, and it has been explored and debated. Ours was not a reservation of substance, it was a reservation of process. We felt that in order to craft a proper program we would need extensive consultation with a number of stakeholders, whether that's the municipalities, the health units that are currently engaged in working through the front-end part of the program with us, cottage associations, tourism associations, any number of people who would be impacted by such a program.
What we have managed to achieve by approaching it this way is laying the legislative framework which will allow us to embark on that consultation and then craft the program and prescribe it by a regulation. We feel we need to hear from them how a program might work and interface with the ministry in our various other activities.
So it's not reluctance to the undertaking, it was caution around process. This in fact is a wonderful compromise in that nothing will happen once this is passed until we have the regulation in place. We will have that in place once we have consensus and comfort with all the stakeholders, and I think that will happen over the months ahead.
Mr Curling: That's a very good answer. Let me just ask the Chairman, since the parliamentary assistant -- and I'm sure they have kept him up to date about the process.
As the assistant deputy stated, of course consultation has to be done with many of the stakeholders in order to put proper legislation in place, and this wasn't done. In other words, Bill 163 seemed to be a bit hurried and not completed, and as we go on the way, we just make up the rules as we go along. As a matter of fact, that's why today we have this section being included.
While my party has no objection at all to including this part in the process itself, why is it, I will ask the Chairman, that you are allowing debate of detailed sections of the act now, when we are only talking about whether we should we include it, and then when we get to section 61 we will ask all the relevant questions to the various ministries?
The Chair: Mr Curling, we had about 25 minutes of discussion on this matter. There was unanimous consent to step this matter up, it was read into the record, there was agreement to ask staff to speak to this, and members began to ask questions. That's what we're considering. At some point we will consider the vote on whether there's unanimous consent to have this matter considered.
Mr Curling: No. I don't think that was the understanding I had. I gathered that we want to put on the table whether or not it will be included. We voted on that to bring it forward. We know it's out of order to debate it now. Now you're saying we gave you permission to debate it. That was not the case.
The case was that here we have an amendment -- an inclusion, as a matter of fact -- and even within that inclusion in the act we had an amendment, because it changed. The one we got this morning when we walked in here was amended again by the time we sat down. We had no chance, in other words, to understand what we are talking about. Even the parliamentary assistant, reading one, wasn't updated until he got the other page to say that is another one.
I'm saying to you, sir, that we agreed for it to be a part of it, and then when we get to it we'll debate it. Just like AMO said, "What we see, we agree to in principle." We're not debating this in principle now, we seem to be debating in detail about the matter of the amendment. The question I ask of you is, at the end of this debate, will there be a vote to accept this as part of the act?
The Chair: At the end of this discussion, there will be a motion about whether there is unanimous support to have this matter to be considered, at which point we could still have further debate on the motion, whether members want changes, amendments to this one or not, and a final vote about whether you agree or disagree with the final motion. You still have the power to say, if you don't want to, "You don't have unanimous consent to have this matter considered."
Mr Curling: Help me to understand this. When we come to section 61, will there be --
The Chair: We are there. We have brought it forward. We have done that.
Mr Curling: That wasn't the understanding, to say that we're bringing it forward to debate it.
The Chair: Mr Curling, it was the understanding of this committee. Perhaps some members didn't think that was the understanding.
Mr Curling: This is rather confusing. All I was doing was to bring it forward, to say yes, it would be inclusive, and then when we come to 61 we'd debate it. We accept this in principle, that this should happen. Now you're telling me that we're debating it in detail and a vote will happen to accept that.
I think we were hoodwinked; I mean, I was. I wasn't in full understanding of it all. I just felt we were bringing it forward, and then when we get to it we'll debate it. It is very unfair for my party to be debating this in detail when they were changing it along the way: between 8:45 and now it changed twice. You're saying that we're debating this and we'll be voting on it at the end of the period.
The Chair: I'm sorry. It may not be helpful to respond to this other than having --
Mr Curling: No, it would be very helpful.
The Chair: We agreed to move this matter up. That was done. Then the motion was read into the record. There was a sense from the committee that they wanted to hear from the staff about this particular amendment that was coming forward. Members began to ask questions on the bill. Some of you have done that, on both sides. At some point, once the questions are over, we will ask the question, "Is there unanimous support to have this matter considered?" If you say no, this amendment doesn't go anywhere. That's what we agreed to.
Mr Curling: Having the matter considered, meaning we'll vote on this section of the bill?
The Chair: No: Is there unanimous consent to agree whether or not this amendment should be considered. It's not a vote on the amendment, it's a vote on whether we should consider to have a vote eventually on this amendment. You're not voting on the amendment, but consideration of it.
Mr Grandmaître: Will you be dealing with our amendment as well, Mr Chair?
The Chair: We'll have the same discussion at some point.
Mr Grandmaître: "At some point" when?
The Chair: When we get to it. But if you want to have a motion to move yours ahead as well, we could have that discussion.
Mr Grandmaître: And that's in November.
The Chair: Once we finish with this matter, if you want to have the same motion to move that matter up, we could have the same discussion.
Mr Wiseman: Mr Chair, if I understand it, if we've moved up section 61, we should also consider their amendment at the same time.
The Chair: I am prepared to move to the next step rather than continue the debate on this matter. I think I clarified Mr Curling's question.
Mr Johnson, you have questions to the staff, correct? Okay. If you don't mind, I prefer that we move on and try to finish off whatever questions or comments members want to make on this matter, and at that point we will have the vote on whether there's unanimous consent to consider it.
Mr David Johnson: At the present time, the Ministry of Environment, I gather, has responsibility for ensuring that septic tanks are properly maintained in the province of Ontario.
Ms Willis: That's correct.
Mr David Johnson: We've heard various numbers through the deputations, but can I get it right from the horse's mouth? How many septic tanks do we have in the province?
Ms Willis: We have approximately one million now operating in Ontario.
Mr David Johnson: Does the ministry have any estimate of how many of these are operating satisfactorily and how many are otherwise?
Ms Willis: Let me say that we concentrate our efforts and resources on inspection and installation, primarily through the health unit part VIII program, because we believe that if the lot is geologically acceptable to install a septic and if it's properly installed, it will probably function quite adequately for some time.
On a reactive basis, when we get questions or are notified of concerns or complaints, we go out and reinspect to determine whether or not a system is functioning properly and then take the appropriate action. Additionally, because we're constantly monitoring rivers and streams, we get indications that there may be septic systems that are not operating properly and we follow that information back to determine whether some are malfunctioning.
Last year, we inspected about 14,000 septics through either of these models and found about 2,000 to be malfunctioning in one way or another. So one could say that about 14% of where we suspect trouble, there is trouble. If you extrapolated that out, you would say that perhaps somewhere in the neighbourhood of 15% of the septics in Ontario might be malfunctioning.
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Mr David Johnson: In the 14,000 you inspected, though, you had some reason to believe that there was a problem.
Ms Willis: Yes.
Mr David Johnson: And that's probably not true of the majority of the septics in the province of Ontario, so the 15% actually could be on high side.
Ms Willis: Yes, it could be. I'm saying if you take the worst-case scenario and extrapolate it out.
Mr David Johnson: Is there a program in place in the province of Ontario to ensure that septics are properly functioning, or is it simply by complaint or by somebody registering a concern?
Ms Willis: We become quite familiar with the lay of the land, in terms of the staff out in the field, and we're familiar with local situations. We become knowledgeable of some of these situations because of specific concerns raised by home owners, neighbours, cottagers, farmers, whatever. As I say, through our specific monitoring of the water bodies, we're able to detect the problems; those are our monitors, if you will, and then we follow up on each of those situations. But we do not go place to place, house to house, with a full, widespread inspection program.
Mr David Johnson: What sort of budget does the ministry have for inspections?
Ms Willis: Currently? Right now, we have a budget of about $6 million, which is in money that is transferred primarily to the 34 health units and the two conservation authorities that carry out the installation inspection program for us. I have a number of staff in my regional operations branches who, in their abatement work, follow up or inspect as necessary and take the appropriate action. Additionally, we have water resource staff who are familiar with it and do a lot of the work associated with determining the situation. I would estimate that in total, up to 21 people are involved in the program inside our ministry, from approvals right through to reinspection.
Mr David Johnson: You indicated that about $6 million is transferred to health units and conservation authorities?
Ms Willis: That's correct.
Mr David Johnson: Under this particular amendment, the municipalities would have the right to fix a fee for the inspection.
Ms Willis: Yes.
Mr David Johnson: What would happen to the money that is currently being transferred to the 34 health units and the two conservation authorities? What's the intention?
Ms Willis: There is no intention at this point except to continue with the existing program, except to the point where, in consultation, we determine that that ought to be part of a broader program that municipalities might opt into. I would not want to, at this point, undermine that relationship with the health units. We would want to continue that until we were assured that municipalities would pick it up as part of a broader program. At that point, we could all determine how that money could then best be used or whether it was indeed necessary, depending on the approach to user fees, education around septics, and other aspects of the program are considered.
Mr David Johnson: I sense you're going to have a dilemma at some point, because the 36 existing entities that are sharing in the $6 million are not going to be too anxious to lose that provincial funding. If they do, that's going to be called downloading. At the same time, if other municipalities participate in the program and don't receive the same financial consideration from the province of Ontario, that's going to be a problem too.
Ms Willis: There are two distinct pieces of the action, if you will. The money I referred to has to do with inspections at the time of installation, and we would still want to continue to have inspections done at the time of installation. We feel that's paramount to a proper working system.
Whether a new program or element of a program is introduced that would be a reinspection aspect, that would be new and additional to that and we would have to discuss how municipalities would go about establishing fees and charging those fees or collecting those fees if a new element were designed.
Mr David Johnson: Are you saying that none of the existing money that is transferred to the health units and the conservation authorities is used for reinspection at the present time?
Ms Willis: That's correct.
Mr McLean: If somebody complains, where do they get the money?
Mr David Johnson: My colleague is saying, if there is a complaint and the municipality sends the health unit out to inspect -- I don't know. Does the funding from the province simply go en masse to the health units, or do you pay by the inspection, or how does that work?
Ms Willis: Wilf can give you the details, but you should know that this only represents a portion of the total fees or costs associated with running that front-end program. There is in our regulation now a minimum fee of $35 per inspection at time of installation. Municipalities -- or read their health units -- have chosen to raise that amount, and some municipalities charge as much as $200, to totally offset their costs associated with it. So the program is partially run now at municipal cost and therefore transferred to the users, and part of it is underwritten by the ministry. If you want more specific details on that, Wilf could speak to it.
Mr David Johnson: Maybe Wilf could tell me again. Does the money that flows from the provincial government to the municipalities, to the health units or the conservation authorities, flow in a bulk sense or does it flow based on the number of initial units that the inspector -- how does it work?
Mr Wilfred Ng: The agreements were usually entered into between the region and the health units, and my understanding is that the allocation would be based on workload, so that would be depending on the number of inspection, the number of approvals issued.
Sheila mentioned that we provided a grant of $6 million a year, but that is not the total budget for the maintenance of the program. If you add the health unit costs and our costs involved, that would add up to between $11 million to $13 million. So the costs for the maintenance of the whole project is not $6 million. I just want to clarify the point.
Mr David Johnson: But the rest of the money comes from the local property base, taxes.
Mr Ng: Yes.
Mr David Johnson: Can you tell us that it's not your intention to withdraw funding, at this point? There are going to be negotiations, presumably, and you've used the words that when the regulations go out, you're going to get "consensus and comfort." Those are not words that, in my short stint here with the province, I've heard associated with regulations. At any rate, maybe this time it will work.
Ms Willis: I cannot predict how the Treasurer will deal with our allocations in the years ahead, but it is not the intent of this instrument to cause any change in our current level of funding for this program. Whether other considerations make us review that is always open, but this is not an element of this amendment.
Mr David Johnson: Do you ever foresee a time when this program would become mandatory on municipalities? Right now it's permissive. Is it the Ministry of Environment's view that --
Ms Willis: Once again, everything's difficult to predict. It is not the intention at this point to make it mandatory. I would think that however the program is crafted, the success of the program from municipality to municipality would encourage other municipalities to participate in it. That would be, I would think, instrumental in drawing more municipalities into it.
Mr Wiseman: It would take a legislative committee to do that, wouldn't it?
Ms Willis: It would take a subsequent legislative amendment to make it mandatory program rather than an optional program.
Mr David Johnson: Have you had a demand for this kind of program over the years, from municipalities or environmentalists or citizens, from any source?
Ms Willis: It's an issue that comes up from time to time, yes. When we meet, for instance, with the Federation of Ontario Cottagers' Associations, they're concerned about the proliferation of septics on specific cottage lakes. They have carried out inspection programs themselves, or, using Environmental Youth Corps staff, tried to keep abreast of the septic situation on their lakes, as it's very important to them. Municipalities have raised it from time to time, but we have not engaged in any deliberate dialogue around it to this point.
Mr David Johnson: Shifting back to the specifics of the bill, you've not indicated any kind of time frame in terms of the program for inspections. AMO has suggested five years, but you've left that open.
Ms Willis: Yes, that would be an element of design of the program once all the information is on the table.
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Mr David Johnson: Have you any thoughts on that matter? I've heard some experts' opinion that five years is actually somewhat too frequent, that it may not be required every five years.
Ms Willis: It may not be, or there may be ways of selecting, depending on problem situations, how frequently you inspect in a particular area. That way, a municipality later would be able to design its own deployment of the program to concentrate on areas of concern. As we know, sometimes septics operate for 30 years without any problem; in other cases, they can malfunction very, very quickly, depending on how the household is using them, what's going in them, capacity, factors like that.
Mr David Johnson: You've left the fees open as well. Do you intend to put any limitation on the fees that could be charged, or do you intend to leave that to the municipalities to fully determine?
Ms Willis: I would expect that the municipality could approach it two ways. They could see this as a service to residents of the municipality, given that in some cases people are hooked up to sewage plant systems and the municipality absorbs the cost of those in the general tax base. They might, for instance, view this as an extension of that and mould the costs into the general tax base as if it were a different approach to providing septic systems for the municipality. They may in fact approach it from the perspective that if you are off the sewer system and on an individual septic, they might choose to apply the cost associated with the inspection to the individual home owner.
It would be up to the municipality to determine which is more appropriate, given perhaps the balance of septic to sewer systems in its municipality. Some municipalities are totally on septic. They vary.
Mr David Johnson: In that regard, I guess you're aware of the position of the Association of Municipalities of Ontario. Their point is that municipalities should not be required to conduct the inspecting or charging for the inspection. I'm reading from the brief they presented, although they have another letter, I think today, indicating that they're prepared to work with you and they're in general support of the principle. Still, in the specific brief they made to this committee, they indicated, number one, that municipalities should not be required to conduct the inspecting. Maybe your point there is that you're not, that you're making it permissive. But I read into that that maybe they felt MOE should be more proactive in terms of doing the inspections rather than municipalities.
Let's focus on the other part. They felt that municipalities should not have to charge for the inspection. I think one complaint that's going to be made is that this is your responsibility, that septic tanks are the responsibility of the Ministry of Environment and you are shuffling the cost off on to the property owner, either the property owner or, as you say, to the municipality if the municipality folds it in. That's what, in municipal jargon, they call downloading. How do you react to that?
Ms Willis: As I said earlier, we do carry out reinspections. We do not cover the province. We selectively target areas of concern. We carry that out now, and might for the future. If the municipalities choose to approach it more aggressively through this permissive program, I would presume they would be prepared at the same time to absorb the associated cost or use a user-fee basis.
Mr David Johnson: Today, who is responsible for septic tanks in the province of Ontario? If there's a problem, if there's a violation, by law who has the responsibility today?
Ms Willis: By law, the individual home owner or operator of the septic tank is responsible for ensuring that their septic is in good working order and is not having a negative impact on the environment. We have strict guidelines, for instance, for water quality at the property edge etc, and they are individually responsible. If we were to go in and inspect now, we would require someone who has a malfunctioning septic to put it in good order and they would absorb the related cost.
Mr David Johnson: That's fair enough. What government has the responsibility to ensure that the individual property owner lives up to his requirements?
Ms Willis: Right now, the Ministry of Environment has that responsibility, and I believe we carry out that responsibility as best we can, given our resources and our other environmental concerns. We work very hard in my division to balance a work plan, and in our estimation are attending to this situation in an appropriate fashion, given our resources. As I said, if an individual municipality wanted to approach it more aggressively or devote more resources to it, this would provide that opportunity for them to do it with the proper authority.
Mr David Johnson: So at present the Ministry of Environment is the government that has the enforcement authority. You're giving some of this enforcement authority, on a permissive basis, to the municipalities, but along with it goes the cost, either to the municipality or to the local property owner. I'm quite confident that that's going to be viewed as a shuffling of financial responsibilities from the provincial level to either the local level or the local ratepayer.
Ms Willis: I don't see it that way. I see it as a selected enhancement to what we're currently undertaking to provide for different circumstances in an individual municipality, and we want to provide for that opportunity.
Mr David Johnson: Are there any qualifications that the provincial government will specify for whomever inspects the sewage system, or are there any today?
Mr Ng: There are procedures and guidelines in place on that issue, but I don't think we have a formal training program in place, and this is what we want to develop in the future. We want to develop a formal training program for inspectors to provide them with guidance as to how the system should be inspected.
Mr David Johnson: Would that include qualifications -- apparently, most of the inspectors today come from health units.
Mr Jackson: The current regulation does provide minimum requirements in order to be qualified to be an inspector. For example, a qualified public health inspector meets those qualifications. That's not the only way to meet the basic requirements, but that's one of them provided by the regulation. Presumably any program that was developed would have at least that level of qualification required for inspectors, but that would be developed in consultation.
Mr David Johnson: So the normal, run-of-the-mill municipal employee would not have the kind of training or qualifications that --
Mr Jackson: Not unless he receives some special training with respect to it.
Mr David Johnson: I hate to raise this, but there again that's a cost the municipality would have to incur. Is the ministry entertaining any assistance to municipalities in terms of training people to be involved in this kind of program?
Ms Willis: I would anticipate that we would have a strong role to play in developing guidelines to complement the program as it's designed, in developing training and outlining what the training requirements might be for inspectors, and providing additional information to people who operate septics so that they're kept in good repair. I think we have a strong role to play in education and training in the future, whatever happens to this amendment.
Mr David Johnson: What other procedures do you anticipate that municipalities will inherit if they accept this authority that's permissive? I'm thinking along the lines of recordkeeping or reporting or that type of thing, administration in general.
Mr Jackson: The program of course will be developed in consultation, but if a municipality is running a program it will naturally have to keep records. The program may specify some detail as to what records would have to be kept. If the program extended back to the inspection of land for suitability for septic tanks before they're installed or before a land use change is approved, that could also be included in the program if that's what the municipalities want. Health units or contracted municipalities do it now.
Mr David Johnson: The 34 health units involved at this point keep some sort of records, presumably.
Mr Jackson: Yes, they're required to keep records of all the approvals they issue and all the inspections they make.
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Mr David Johnson: Is there a record of the one million septics in Ontario today? Do we have it somewhere?
Mr Jackson: There is a record of part of that. Many of them were installed before Easter 1974 when part VIII of the Environmental Protection Act came into force.
Mr David Johnson: I'm looking at the last page here, under (7). It refers to municipalities and the issuance of certificates of approval, and municipalities and the issuance of permits. Can you explain to me what the difference between those two would be?
Mr Jackson: Yes. Under part VIII of the Environmental Protection Act you need a certificate of approval to be able to install a septic tank or other type of sewage system regulated under part VIII. Most of the types of sewage systems for which you need a certificate of approval must be inspected and a permit issued after they're constructed and before they're put into use to ensure that they were constructed in accordance with the approval.
Mr David Johnson: And then the next clause talks about making orders. Is that an order of a violation, or what order are you referring to?
Mr Jackson: Under part VIII of the Environmental Protection Act, directors, who include people who work for health units in municipalities where we have agreements, can issue orders where there is a faulty sewage system, requiring it be improved or replaced.
Mr David Johnson: To go along with that ability to issue an order, what teeth do municipalities have to require that the order would be obeyed? What would be the procedural steps? For property standards, for example, municipalities pull their hair out trying to enforce them.
Mr Jackson: There are two different routes available. If an order is issued to a property owner and he doesn't comply with it, he's committed an offence, so there's that route.
Mr David Johnson: But that involves court procedure, which is lengthy.
Mr Jackson: It can be. The more likely route is that directors who issue orders requiring that things be done have the authority, if they're not done, to arrange for the doing of them themselves. The Environmental Protection Act already has a provision in it, and I guess there's a similar provision in the Municipal Act for the non-health-unit municipalities, to recover the costs of work they do to implement an order that isn't carried out by the person to whom it was issued.
Mr David Johnson: Are you saying that the 34 health units, for example, in those municipalities would have that authority today?
Mr Jackson: Yes.
Mr David Johnson: That if they found a violation of a septic system, notified the owner and presumably gave the owner some period of time to comply -- what is it, 30 days?
Mr Jackson: Or more. It depends on the season of the year and the nature of the problem.
Mr David Johnson: That municipality can go in and dig up that septic system, whatever is required, do it themselves?
Mr Jackson: And charge the cost to the municipal taxes, yes.
Mr David Johnson: How many municipalities would follow that procedure? I can imagine the problems associated with that.
Mr Jackson: I occasionally get telephone calls from health units asking for advice on how to do it, and my usual advice to them is that they consider cheaper ways to do it.
Mr David Johnson: It's dangerous too.
Mr Jackson: It becomes impractical in residential properties, but in commercial properties, for example, they could include a provision in the order that says, "If you don't do A, B and C, you disconnect your water system," and if the commercial property disconnects its water system, then of course there is no longer a sewage problem: The commercial property can't be occupied for commercial purposes any longer. So there's an incentive.
Mr David Johnson: It would be interesting to see if that stands up as being a legal approach, number one.
Mr Jackson: It's been used on a number of occasions.
Mr David Johnson: But, number two, that wouldn't help in a rural area where you had a well. I can well imagine there would be a great deal of antagonism to the local unit coming in to dig up somebody's --
Mr Jackson: It is unlikely that a director would take that approach with respect to a residential property.
Mr David Johnson: Does the Ministry of Environment offer any assistance through enforcement procedures if there's a problem? The court process is pretty lengthy.
Mr Jackson: Yes. On occasion a municipality that has an agreement with the ministry will ask the ministry itself to issue an order and enforce it, and that can be done --
The Chair: Mr Johnson -- I beg your pardon, Mr Jackson. Please complete your sentence.
Mr Jackson: There are other programs the ministry has that have assisted local residents in areas with problems, with grants to upgrade either their wells or their sewage systems or both.
The Chair: Mr Johnson, can I raise a matter with you?
Mr McLean: Don't raise it for too long.
The Chair: There is a sense from some members -- I don't know whether Mr McLean was part of that discussion yet -- that there may be agreement to rule this motion in order but not to have it dealt with today. If there was agreement to that, that would give the members a fuller opportunity at the appropriate moment later on to ask all the detailed questions.
Mr David Johnson: Just let me ask one more question and then I will concur in that general agreement.
The Chair: All right.
Mr David Johnson: I'll get the rest of my questions for a later time, I guess.
The other part of AMO's request -- or maybe it was the Sewell commission. The Sewell commission's recommendation was that the Ministry of Environment should take a lead in research and development on private systems. I presume they're talking about private septic systems. As we're being pushed on here, could you quickly outline to me what lead, specifically in terms of money and initiatives, the Ministry of Environment is taking with regard to research and development of private septic systems?
Mr Ng: The ministry has a funding program in place to support the development of innovative technologies.
Mr David Johnson: How much?
Mr Ng: I do not know how much the budget is because that is not with our branch, but that would include funding for technologies involving septics. I can undertake to find out how much money we have for the program.
Mr David Johnson: And let me know? Thanks.
Mr McLean: Could I have a clarification, Mr Chair?
The Chair: Sure, Mr McLean.
Mr McLean: A grave concern has been raised with me with regard to the five years that AMO has been recommended. I would hope that in the regulations, a municipality could set its time limit, up to a maximum of 10 years. That's what I'd like to see.
Ms Willis: I would think that in the program that is eventually designed there would be a number of variables in it, and those variables would be elected or crafted by an individual municipality depending on the nature of their municipality, the number of septics, their budgets, any number of things, and they could probably put in a rotation that's -- they may, for instance, want to do a hierarchy of what types of septics are actually inspected at what intervals. There may be a number of variables there.
Mr McLean: I wanted to express that concern.
Ms Haeck: I appreciate the information you're giving. Most of us who are in urban areas don't tend to think about septics, though the reality is that even some major urban areas -- I understand there are some septic systems in Rosedale and in Scarborough; not many, but a few. We ran into a few in St Catharines that malfunctioned and the public health unit sued the owner.
I understand that in some places, particularly some areas of Middlesex, I think, you've encountered some pretty major problems with septic systems, some fairly major costs to the ministry when these septic systems failed.
Mr Eddy: Fortunately, the problem's been transferred to the city of London by the government.
Ms Haeck: Let me just finish the question, Mr Eddy.
You've got a situation where these new homes have been built, and they're pretty costly homes, with septic systems and they've failed. Could you give me some idea of what was involved in remediating the problem? If you have any figures as to costs involved, I'd appreciate it. Some of the other members might also appreciate knowing what is involved in this process, because it's not just a matter of the moneys you may put into the program in terms of inspection, but obviously the remediation problem can be quite costly for everyone.
Mr Ng: I don't have the exact amount of money involved in the remediation of that situation, but my understanding is that the planning was not done properly at the outset; that the number of houses put in afterwards exceeded what was initially envisaged and that put a strain on the septic system, which caused some problems in terms of local contamination. But I do not have any numbers about how much has been expended to remediate the situation. This is why we feel one of the important elements on a proper management of septics would be through proper planning at the outset, and this would eliminate the problem afterwards.
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Ms Haeck: You have some figures, I believe, in relation to the kind of groundwater contamination that has occurred across the province. I'm not sure exactly who put me on their mailing list, but the University of Waterloo has a groundwater department, and from getting their publications I'm aware that it is a pretty major issue across rural Ontario. I've heard one study indicate that something like 30% of the wells in rural Ontario are contaminated. Is that your understanding as well?
Ms Willis: There are a number of factors that contribute to groundwater contamination in the province: industrial activity, individual activity, and certainly from malfunctioning septics. Unless you isolated the situation and examined the contributing factors, you couldn't say at the outset, without the proper testing and knowledge to determine what percentage or what aspect of the problem has been contributed by the septics themselves.
Ms Haeck: The Niagara Peninsula Conservation Authority has put in an application with regard to your Clean Up Rural Beaches program, because they're trying to actually track, not just from farm practices but also from septics, the issue of contamination in the Welland River area, trying to determine the state of contamination. Is this something that's well used in rural areas as a means of getting a handle on what the sources of contamination are? Do you have any idea of the funds involved from your ministry as to investigating the problem?
Ms Willis: I'm sorry, I didn't come equipped this morning to answer specific questions about CURB and some of the other related programs, but we do have number of activities in the ministry that are complementary to getting information and getting a handle on the groundwater problems. CURB has been very successful in that regard. Our activities, for instance, in the remedial action plans for the areas of concern link us backwards into sometimes problems associated with septics. We do, through the Ministry of Agriculture, Food and Rural Affairs and the Ontario Federation of Agriculture, work with the rural community and rural municipalities to identify and work at remediating those situations.
Ms Haeck: I'd like to follow up on the point Mr Eddy raised going back to the Middlesex situation, and I think it also relates in part to the points Mr Johnson was raising in part (7) of this amendment. In fact the municipality is responsible for the issuance of the certificate of approval, and obviously the municipality is responsible for a lot of the planning, so if they've done faulty planning and they've issued these certificates of approval, to my mind they're also probably responsible for some of the costs with regard to remediation. Is that the position the ministry is taking in this regard?
Ms Willis: Sometimes it's very difficult to unravel the history of some of these situations. As Mr Jackson pointed out, some of the septics were installed long before there was a Ministry of the Environment and a part VIII of our act, so we're dealing with 100 years or more of aggregated situations in the province. While you may be able to point to a specific situation and say better planning might have avoided that situation, in other cases it's just the way the province has evolved over the years. I would think that with the passage of this bill, municipalities will be viewing their new, enhanced responsibilities with regard to planning in a way that will probably keep them away from some of those ill-fated decisions.
Ms Haeck: A good, diplomatic answer.
Mr Eddy: I'd just like to follow up on some of the points made by the previous speaker. It's not that my own reputation is at stake or anything like that, but what happened is a concern. A particular situation, a very bad situation, was mentioned, which causes concern to all of us, I expect. If it doesn't, it should.
But I just want to point out as a matter of information that it was not the municipality, namely, the former township of Westminster, that made the decision on the installation approval of the septic tanks and the system which failed horribly. It was the Middlesex-London board of health, at least the officials were employees of the Middlesex-London board of health, which included representatives from the city of London, the county of Middlesex and the province of Ontario -- two appointees, I believe. There wasn't any actual representative from the particular municipality, I don't believe, on the board of health that approved it.
Of course, that's one of the reasons I was asking about this particular amendment -- which we're not discussing -- compared to the present system for the inspection of septic tank systems, which has now gone to, I understand, the Upper Thames conservation authority -- maybe it's Upper Thames and Lower Thames -- and it's not being done by the board of health any longer. But it wasn't the municipality, really.
Maybe I was not as clear as I should have been. The actual approval of that would be done by employees, officials of the Middlesex-London district board of health, but under rules and regulations of the ministry rather than under rules and regulations of the particular board of health. Indeed, the actual decision may never have come before the board of health, really.
Ms Willis: I appreciate the additional information, but I'm not sufficiently familiar with that case to add anything.
Mr Eddy: But is that what happens in cases where boards of health have jurisdiction, or I guess where the conservation authority is responsible for the inspection of installation of septic tanks and septic tile beds? That decision is made by employees and officials of the organization acting under the rules and regulations of MOE rather than the rules of the particular body.
Ms Willis: That is a very fair interpretation, yes.
Mr Eddy: Thank you. I just wanted to be clearer than I was.
Mr McLean: Mr Chair, while ministry staff is here, I wonder if I could get a clarification. I raised the issue earlier with regard to schools in rural Ontario. As a matter of fact, there's a school on the back of my farm, and they need an addition and further septic system or septic approval in order to expand. Is the ministry looking into an overall plan? I know there's one in Duntroon, near Collingwood, in the same situation: They can't expand because of the septic systems they have. There's one school in Guthrie, in Simcoe county, that has a unit put in which is on an experiment, I believe.
Ms Willis: That's correct. In fact, my director of central Ontario region worked with the local officials and the school board to try to effect that solution, and it was in fact a need to expand the school facility on a site which was constrained geographically and not capable of taking on an expanded septic. They have looked at a modified approach to it, I believe with a holding tank component, in order to let the school facility go ahead. If that's properly maintained and pumped out regularly and watched very carefully, it probably should be fine. I think the Guthrie situation has been solved.
Mr McLean: So will you allow that to take place in other parts of the province?
Ms Willis: We would hold to our current guidelines -- although guidelines from time to time are modified -- on not approving the construction of a facility, a household, whatever, where a holding tank is required that's not the prescribed method. But in a situation like this, where you're trying to fix something that's already in situ, it can be relied on sometimes as a solution, and we always have to try to be creative about that. But we would normally not want a site to be developed unless it was capable of containing and managing a complete septic system.
Mr McLean: So what you're saying is that the present sites that are there will be allowed to expand subject to --
Ms Willis: Subject to a number of guidelines and considerations. Obviously, it's not something that we want to have explode across the province. It's not a proper method.
Mr McLean: Thank you.
The Chair: Having heard some discussion from different people about what we might do, is there agreement to have this motion considered to be in order, and, once having agreed to that, that we then consider this matter at the proper time in the proper sequence?
Mr David Johnson: Along with the other motions with regard to septic tanks?
The Chair: Along with everything else that's there. Is there agreement to that?
Interjections: Agreed.
The Chair: Thank you.
Mr Wiseman: Can I get a clarification of just exactly what that means?
The Chair: Now that we've agreed, we'll thank the staff for coming and for the information you've given to us.
What it means is that when we get to this item, which is 188 --
Mr McLean: In December.
The Chair: -- we will consider that motion as in order and it will be dealt with as any other amendment that is before us.
Mr David Johnson: And the same will be true of any other amendments in here that pertain to septic tanks, whenever we get to them, wherever they seem like they will be considered --
The Chair: I think we would have unanimous agreement to agree to do that as well, once we get there.
Mr David Johnson: That was part of the motion.
The Chair: I would assume that would be the case.
Mr David Johnson: So that should be reflected in the minutes or whatever.
The Chair: Let us do that. I won't forget, as the Chair.
Mr McLean: If we bring an amendment in, it will be accepted as part of that.
The Chair: I'm assuming, based on this discussion, that if there's another amendment made by the different caucuses, we would consider it in the same spirit as we're doing this.
Mr Curling: Very much so.
The Chair: We would ask, for the motion, "Is there unanimous consent?" and my assumption would be that there would be, based on this discussion. Okay?
Mr Wiseman: If I understand this correctly, what we're saying by this unanimous consent motion is that this committee has agreed by unanimous consent that this motion is now in order --
The Chair: That's right.
Mr Wiseman: -- and that it is now in order to open up the Environmental Protection Act, when we get to it, in order to consider these amendments, including the Liberal amendment and the -- I don't know. Do you have an amendment too? I am just making sure that what we're doing here is giving unanimous consent to open the Environmental Protection Act.
The Chair: Let me repeat the issue here. We said this was not in order because it did not fall within the scope of the bill.
Mr Wiseman: Now we're saying it is.
The Chair: Now we're saying it is. So it's an amendment that will be considered when we get there and will be voted on, yea or nay, with amendments or no amendments and so on.
Mr McLean: As this is in order, we now have the opportunity, if we feel we can make it better, to bring in an amendment to do it?
The Chair: Absolutely, as any other motion that is before us. Exactly.
Mr Curling: Mr Chairman, you have clarified beautifully that when we get there, it's opened up for debate. If the Liberals or the Conservatives have amendments, we'll put it forward, but we don't need unanimous consent to put our amendments forward, because now it's in with the normal process.
The Chair: That's right.
Mr Hayes: We have just given you that.
Mr Wiseman: We will consider all amendments.
Mr Hayes: On that issue.
The Chair: Exactly. On this issue.
Mr Curling: Thank you very much for listening to my concern.
The Chair: Very well. Given that it's close to 12 o'clock, this committee is recessed until 2 o'clock.
The committee recessed from 1154 to 1407.
The Chair: We will proceed from where we left off yesterday. A government motion, Mr Hayes, when you're ready.
Mr Hayes: I move that clause 17(38)(b) of the Planning Act as set out in section 10 of the bill be struck out and the following substituted:
"(b) the person or public body requesting the referral or the appellant did not make oral submissions at a public meeting or did not make written submissions to the council before the plan was adopted and, in the opinion of the board, the person or public body does not provide a reasonable explanation for having failed to make a submission;"
What we're saying here is that a public body should be subject to the same rules as a person, and if there are concerns with the official plan or amendment, they should bring their concerns to council before the plan is adopted. The amendment also allows a person or public body to provide an explanation in response to concerns raised by community and environmental groups; there could be a legitimate reason or reasons why people did not participate early in the process.
This amendment was requested by various ratepayer and citizen groups, supported by the Association of Municipalities of Ontario, regional planning commissioners, the Urban Development Institute, the Canadian Bar Association -- Ontario, and the Canadian Environmental Law Association.
Mr David Johnson: The parliamentary assistant used the word "legitimate" explanation for having failed to make a submission, but the word actually here is "reasonable." That was the word Christel Haeck used the other day and said that the word "reasonable" is open to interpretation. I have to agree. I wonder if the ministry staff could give us some guidance as to how he would anticipate that the word "reasonable" would be interpreted. Could he give us a few examples of what would be a reasonable explanation?
Mr Philip McKinstry: First of all, to preface what I'm going to say, we heard a number of submissions to the committee where people were concerned that they may not know about a proposal and therefore they may not have given input and therefore it could be dismissed. That's why we put this in. The kinds of examples that we were thinking about here were that if somebody didn't get notice, for example, if they did not receive a notice of the proposal, that would seem to be a reasonable explanation for them not participating early on.
Mr David Johnson: That's one example. Just to explore that, though, there is an area within which notice must be given.
Mr McKinstry: That's right.
Mr David Johnson: It's not here, but if you're doing an official plan amendment or something, there are certain people who have to be notified within an area, or it may be a general notice in a newspaper. It depends on the situation, I guess.
Mr McKinstry: Yes.
Mr David Johnson: If there is a specific area in which people have to be notified, and a person comes from outside of that area, didn't get a notice but there was no requirement that that person actually get a notice, would that still be considered a reasonable explanation?
Mr McKinstry: The determination of what's a reasonable explanation would be up to the person or body making the decision. But I'd point out that, in zoning bylaws, there is a very precise area of notice. In official plans, there isn't that precise area of notice. It's a general --
Mr David Johnson: Newspaper notice.
Mr McKinstry: It would be a newspaper notice if it was for the whole municipality; it might be to a neighbourhood if it was for a specific amendment. It would be up to the person or the body making the decision.
Mr David Johnson: So an official plan amendment would be hard to argue, because if it was in a newspaper, unless it was kind of a local newspaper --
Mr McKinstry: That's right.
Mr David Johnson: Are there any other cases that the ministry would feel would be reasonable, beyond the fact that somebody didn't get a notice within the correct area?
Mr McKinstry: My first caution is that it won't be the ministry making the determination.
Mr David Johnson: You're making the bill, though.
Mr McKinstry: Two other examples that come to mind are where somebody moves into a neighbourhood after notice was given, so they would not have had that opportunity. Something we've heard a lot about is cottagers who do not have the opportunity to receive notice because they aren't there and it's only in a local newspaper, so that might be another example, I suppose. As I said, we won't be making the determination.
Mr David Johnson: I appreciate that, but presumably your ministry, the province, will be providing guidance. We would want this to be somewhat a consistent interpretation across the province of Ontario, would we not?
Mr McKinstry: We might certainly provide some bulletins. Our plan is to provide bulletins on a number of the new sections of the act, so that would certainly be a possibility, to give some helpful suggestions.
The Chair: Further speakers? Seeing none, all in favour of the amendment? Opposed? That carries.
Mr McLean: Mr Chair, on a point of order: When we left off last night, 17(38)(a)(iv) of the Planning Act, it was discussed but it was never voted on.
The Chair: I have here "carried."
Mr McLean: I haven't.
The Chair: I have a check mark here beside my notes. Is that the case? Yes. They all agree with me here.
Mr David Johnson: The official scorecard here says it was.
The Chair: The official archive department says yes. Okay, Mr McLean?
Mr Hayes: I move that subsection 17(39) of the Planning Act, as set out in section 10 of the bill, be struck out.
This is quite similar to what we said in the previous one, that a public body should be subject to the same rule as persons, and if there are concerns with the official plan or amendments, they should bring their concerns to council before the plan is adopted. The people who requested this type of amendment are the same ones as the previous one.
Mr Curling: What is this mean? You're saying a public body can now -- it says "does not apply to a referral request or appeal by a public body." Therefore, a public body can now give a reasonable explanation for having failed to make a submission. You're saying they can do so now. You said we're striking this out, because this was the exception. I understood this as being that the exception here doesn't apply to public bodies. Now you say, "Strike that out, because we just passed this one saying if they give a reasonable explanation, they can."
Mr McKinstry: That's right. It will apply to public bodies. Public bodies would be able to be dismissed, the same as private persons or organizations, but they would have the opportunity to give some reasonable explanation.
The Chair: Anything further? Seeing none, all in favour of the amendment? Opposed? That carries.
Next we have a PC amendment.
Mr McLean: I'll withdraw that amendment to section 10 of the bill, subsection 17(40) of the Planning Act. I'd like to withdraw that.
Interjections.
Mr David Johnson: Mr Chair, there's been a little bit of confusion. I'd like to move number 63.
The Chair: All right, Mr Johnson, go ahead.
Mr David Johnson: I move that subsection 17(40) of the Planning Act, as set out in section 10 of the bill, be amended by,
(a) adding after "shall" in the third line "within 15 days of its decision"; and
(b) striking out "an opportunity" in the sixth line and substituting "15 days".
By way of explanation, this is simply a request to put time lines around a municipal board dismissal. For example, there could be a frivolous objection which the board may dismiss, or I suppose any kind of dismissal. It's simply in line with our desire to streamline and speed up the system, to direct the board to do that within 15 days after it's made its decision. Within 15 days after it's made its decision, it will notify those concerned.
That puts a time frame around that; otherwise the time frame is open-ended. It also gives those who might appeal this decision, as I understand it, 15 days to make representation on that dismissal to the board. It's putting a tight time frame so we know that events are not going to carry on for ever.
I wonder if the parliamentary assistant or the staff have any objection to that, and, if so, what it would be.
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Mr Hayes: Actually, at the present time the OMB is making an effort to streamline. Recently, they have been very successful. Set time frames for the OMB -- we don't have the same view that we should do that. Some of the other arguments when we're talking about time frames is that you're saying the OMB can wait for 15 days to do something, and in fact it may be able to do it sooner. We feel that streamlining is already taking place and it's not necessary for this.
Mr David Johnson: I guess I just don't know how to comment on that because I really don't know what the logic is. You say you're in favour of the OMB streamlining, so you'd be very much in favour of the OMB meeting this sort of deadline yet you're unwilling to provide that direction, for some reason or another. I'm not sure exactly why. Could you try once again: Why is it? Are you afraid the OMB won't meet the 15 days and that'll cause a problem, or why particularly?
Ms Elaine Ross: One of the reasons we don't think of this as a problem is that the section requires the board to notify the person and give them a chance to make representations before they actually make their decision, so to say they'll tell them 15 days later really doesn't work, in the light of the requirement to talk to them first.
Mr David Johnson: This, I might add -- which will possibly doom it from the government side -- was a suggestion from the Ontario Home Builders' Association, so they must have some reason to believe this process at present is longer than 15 days. I see some conferring going on. I don't know if that's with regard to this.
Ms Ross: It's unrelated.
Mr David Johnson: Unrelated? Can you just enlighten me? Maybe you could tell me what happens. The OMB makes a decision to dismiss a referral, and then the next step is that they must notify whoever requested that referral.
Ms Ross: Are you talking about this section? The section would require that someone would either bring a motion or the board on its own initiative would look at the situation to determine whether or not the referral should be dismissed, and before it made its decision, it would have to give the person an opportunity to make representation. That could be either at a hearing held for that purpose, or they could decide to do it through written submissions. The person would either be at the hearing or obviously would be notified as soon as the board made its decision.
Mr David Johnson: Whatever it was that was referred to the municipal board, perhaps an official plan amendment, when would it go into effect? In other words, when would it clear the Ontario Municipal Board? Would it clear it once the OMB dismissed the referral, or is there a waiting period after the decision?
Ms Ross: I'm not sure I understand your question.
Mr David Johnson: The concern here, as I understand it, is that this is slowing up the development process.
Ms Ross: No. In fact, the idea is to help streamline the development process. What it does is allow a developer to bring a motion on before the hearing date to say, "I think this referral is frivolous; the person hasn't made it in good faith," or for some other reason that it should be dismissed. They could bring their motion any time before the hearing date -- even, I suppose, the morning of the hearing, but that wouldn't be streamlining; I expect they'd bring it earlier -- and the board could make that determination.
Mr David Johnson: Don't get me wrong. I understand that the main intent is to streamline. But I'm looking at the steps along the way. One of the steps along the way is the Ontario Municipal Board. I'm asking you, when does an item officially clear the Ontario Municipal Board? Is it at the instant it dismisses a referral request?
Ms Ross: I'm not sure what you mean by "clear."
Mr David Johnson: Ultimately, the builder wants a building permit, and to get a building permit --
Ms Ross: They would still have to make their decision. They would consider all the planning evidence and make a decision, and that would happen at the actual hearing. This dismissal motion may or may not happen at the hearing. It may happen any time up to the point of the hearing, and there is no time frame for the hearing. That depends on the board's schedule.
Mr David Johnson: What I'm driving at is that there are steps along the way. One of the steps is the Ontario Municipal Board, and when the Ontario Municipal Board is finished with it and has made its determination, then it has to notify either the approval authority or the local municipality, and then the local municipality presumably is satisfied that its official plan amendment is valid.
Ms Ross: That's right.
Mr David Johnson: So what I'm asking is, what signifies that the Ontario Municipal Board is finished with it and it's now back into the local municipality?
Ms Ross: The board would issue an order. That can happen any time following the hearing. Sometimes they make the decision at the moment of the hearing, and sometimes the member will go away and consider it and issue their decision and the order later.
Mr David Johnson: Could you give us some idea of what the average period of time would be from when the board makes a decision to when the board issues the order?
Mr McKinstry: I don't have any figures. I do know that the board's time frame, certainly the wait for a hearing, has diminished substantially. I believe it's something like six months now, and it used to be a year and a half. My sense is that the rest of the process would also be faster, but I don't know what the average time between making a decision and issuing an order is.
Mr David Johnson: I'm hearing from the background here that in fact that period is not faster. I hope there will be some questions on that, because I'm anxious to learn about this.
My sense is that once the board makes a dismissal, there's still a period of time involved in notifying the public, notifying whoever has ever objected etc, etc, before the order is issued, I gather. That seems to be the intent from the home builders' association anyway, the concern that there is a period of time, an open-ended period of time, that there's no clock on it. We put a clock on just about everything else -- 150 days, 180 days, 30 days, whatever -- but there doesn't seem to be any clock on this part of the process.
That's what their concern is, and the suggestion is to put a 15-day clock on it. Hopefully, it will be better than that, but at least those who have applications in will rest assured that it can't be any longer than the 15 days. That seemed to make a whole lot of sense. That's the concern. I don't know if you have any more comments that can address that concern.
Ms Ross: I think we're talking about two different things. I'm assuming there are other referrals still outstanding and you're going to go on to a hearing. But if at that point the board dismissed the only referral, and it was a referral from a proposed decision, the board would then notify the municipality and the official plan amendment would come into effect.
You're suggesting that there should be a time period for the board to notify.
Mr David Johnson: Yes.
Ms Ross: Okay. That's in a different section.
Mr Grandmaître: Is 15 days unreasonable? Are you saying that the OMB will do it within 15 days? Is this why this amendment is not acceptable?
Mr McKinstry: I guess we're confused. There's the issue of when they dismiss. But then there's the issue, after the decision is made, if they don't dismiss and go to a hearing, of when they issue the order, which is in a different section.
We certainly put our minds around how we could set time frames in the OMB and whether it was appropriate, and we felt it was not appropriate. One of the issues, of course, is that the time frames in the Planning Act depend on getting people to the OMB. So if the OMB does not make its decision, what is the consequence? There is no further body for it to go on to.
Mr Grandmaître: But don't you think it's important, once it's at the OMB, that there should be a time frame in which the appeal or whatever should be dealt with?
Ms Ross: Perhaps I can raise your comfort level in relation to situations where the referral's been dismissed. I just point out subsection 17(42), which says, "If all the requests for referral...are dismissed or withdrawn and the time for submitting requests has expired," so the 30 days has gone by, "the proposed decision...comes into force on the day after the day the last outstanding request for referral has been dismissed or withdrawn." So the day after the day the board dismisses it, it comes into effect. The board still has to notify them, but it doesn't really make a difference to when the plan comes into effect.
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Mr Eddy: I want to follow up on the matter of the time frame between the completion of a hearing by the OMB and the timing of rendering the decision. There is a very great problem, and it's not being faced. Maybe it's not considered here important to set a time frame on it, but something needs to be done.
This is the problem. A member will complete a hearing, but has a schedule for several other hearings. You phone the OMB and they say it is entirely up to the member when he reports. He'll have a schedule that maybe is overfull; I don't know. But when there's absolutely no compulsion of any kind to report, it just goes on and on and on. To wait over eight months for a decision from a hearing that has been completed isn't fair. It isn't fair to complete that hearing and then go on to hear hearing after hearing after hearing and stack the decisions, and that's what happening.
We need to, at some time -- now is the time -- give some consideration to that. I'm not saying you tie the OMB members' hands within so many days or weeks, but surely to goodness there can be some upper time limit on giving a decision after a hearing is complete. I'm telling you, people are incensed by it and -- well, naturally they're disturbed if they're incensed. It just doesn't seem proper to me, and that's what's happening.
Mr Hayes: I agree with Mr Eddy. That's why we are doing things and streamlining the process in the OMB right now. The examples you have given here today are things we are doing away with. They're not just taking the cases now and compiling them all after they're finished and then releasing them. The system has been sped up considerably. Certainly, we know we have to do more to streamline the process, and that's what is being done now. We're gone from an average of 18 months, I think it was, down to six months now for approval, and I think that's really good.
Mr Eddy: That's for the hearings, but it's delivering the decision. The decision I'm talking about was just given two weeks ago and the hearing was completed in early January. I attended part of it, just for information, of course.
Mr Wiseman: You're a conscientious man.
Mr Eddy: Thank you.
Mr Winninger: On this same point, I had read recently, and I can't remember where, that as part of the streamlining of procedures at the OMB, it had established some kind of time limit for the rendering of decisions.
Mr Grandmaître: Three years ago.
Mr Winninger: And what is the time limit, do you know?
The Chair: Who are we asking? Are you asking staff to answer the question?
Mr Winninger: I was making a comment. If some staff know a little more about that, that's fine, but the point was that they had, as opposed to in the past, established a time limit for getting those decisions published, to address the very kind of concern that Mr Eddy just expressed. That's my point.
Mr Grandmaître: Three years ago, the OMB appeared before the agencies committee, and at that time they introduced this time frame for just about everything that came before them. Three years ago, their average was 16 months to deal with official plans and so on and so forth.
Two years later, last year, they were invited a second time to look at how successful they were with their time frame. The progress was very, very little, and the reason given to the committee at the time was that they had lost seven or eight members who weren't replaced and that's why their time frame couldn't be met.
Mr David Johnson: I think Mr Eddy has even gone beyond what was intended in this amendment, and I think he's brought a good deal of extra knowledge and clarity to this situation.
I think it would be a lot more indicative if the government, beyond taking the measures -- and I agree that some measures have been taken to speed up the OMB process. But when the government is imposing time frames on the municipalities and saying the municipalities have 30 days to do this, or 15 days to do that, or 180 days to do this, why not do the same thing on the Ontario Municipal Board? Why is the Ontario Municipal Board exempt from the same sort of process, the same sort of ticking clock that is going to be imposed on the municipalities? If it's good for the goose it's good for the gander, or something like that -- the old expression.
That's what I fail to understand. I think that would set an example because, after all, the Ontario Municipal Board is a wing of the provincial government. You might say it's independent people who are appointed etc, but it still is the wing of this provincial government, and the perception is going to be that this government is not willing to impose on itself the tight time frames that it's imposing on municipalities.
Mr Hayes: First of all, to say we are not imposing things on the government is really not so, because we already have done that.
Mr David Johnson: Have you?
Mr Hayes: Yes. And we're talking about a different body, an arm's-length body, the Ontario Municipal Board.
Mr David Johnson: It's still a provincial body.
Mr Hayes: And there are times when you talk about -- I wish it was that simple, that you could say, "We can do this in 15 days," but I don't believe it is.
Mr McKinstry: If I can add to what Mr Hayes said, I agree with Mr Hayes that there is a difficulty in imposing time frames on the Ontario Municipal Board. One of them, as I said before, is that our time frames in the act depend on the ability to go to the board. The difficulty is, what consequence do you place on the board: that the decision is invalid, that the application's approved or refused? That is a bit of a difficulty.
The other thing is that the time frames we've imposed on ourselves are the same time frames for all approval authorities, so when we are approving development applications or official plans, we've got the same time frames as everybody else.
Mr David Johnson: Maybe I'll just take a last kick at it. What we're talking about here is that the time frame is totally under the control of the OMB, to start with, so there's nothing I can see in this amendment that would be outside the control of the Ontario Municipal Board.
I'm sure the Ontario Municipal Board may find it difficult in some circumstances, but municipalities may find it difficult in terms of the time frame and the clock that's been imposed on them, and yet they're subject to it. My guess is that there will be circumstances and cases when municipalities will not meet the 30 days or the 180 days or whatever, and chances are that in most of those cases that'll be accepted and people will work together.
If that can happen at the municipal level, then to show consistency and to show we're really behind this 100% at both the municipal and the provincial level in terms of the streamlining, why not do it at the Ontario Municipal Board?
If they fail in a few cases to meet the 15 days and it's done in 17 or 18 days, nobody's going to shoot them, nobody's going to put them in jail. But at least it shows an intent and a purpose to meet that tight time frame, that 15 days. I think it would be a good example.
Mr McKinstry: I guess my only response is that one of the things we heard very clearly from the development community all the way through the Sewell commission and through our own work was that they wanted a way of being sure of getting to a decision. The final decision in our system is the board, so that's all we did in our system: We said, "After x number of days, you can get to the board."
However, if you impose a time frame on the board, there is no further decision-maker to go on to. If the municipality doesn't make it, that means the developer may or may not want to go on, but at least they have the option of getting to another body. That was the logic of our system.
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The Chair: Mr Johnson, I think you've done your best, okay? Please don't try it again.
Mr Eddy: Mr Johnson may have given up, but I have not. This is kind of like allowing Ontario Hydro not to "have regard to" or "be consistent with" the planning policies of the provincial government. Why wouldn't Ontario Hydro be required to? Why wouldn't you want them to? Why wasn't it an amendment? I don't understand it.
Here we have the OMB responsible to the Minister of Municipal Affairs, and the OMB has provincial employees, who work for the Legislature, it seems to me. We've got a special-purpose body. In terms of the municipalities, that have elected members of council representing the citizens, that must follow the rules, you're quite joyfully imposing time frames, in the interest of speeding up the process, on members of councils. Provincial agencies, for the first time -- that sure has been a mess, and we need to impose some time frames.
Here's the OMB, and we're speeding things along. We have a hearing, and months and months later, you phone the OMB. "May we please have the decision?" Actually, you can't say, "We want the decision." You say, "When can we expect a decision?" The response is, "That's up to the member." "How can we get hold of the member?" "Well, he's out on additional hearings."
Unless we come to grips with this matter of OMB members going out on hearings, completing them and then going on indefinitely on a whole series of additional hearings and maybe not having time to give those decisions -- maybe a time frame would be helpful to those members, in that they would be required to sit down and do the decisions. Maybe they want to give the decisions. Maybe they say, "I want to do this, I want to give this decision, but I don't have time because of my schedule of meetings."
The OMB is merely an agency, an arm of the provincial Legislature, and we are in charge and we represent the people. The people want it changed and I want it changed and we should change it. It's really important to face up to this in some way. I don't mean to hamstring anybody by it.
I don't know why we're so reticent to say to the OMB, "You shall not have more than one or two public hearings after completing a hearing before delivering the decision on a previous hearing." That seems to me to be the problem. I've handled it very gently at the OMB, very gentle with it, but saying, "Why should we sit and wait for months?"
This is a very recent case. It was over eight months -- I can give you the particulars -- and it needn't have been, because it was a completed hearing. I just don't understand it. What is the matter? If the wheel is broken in this case, let's put the spoke in.
The Chair: Mr Hayes, do you have a comment?
Mr Hayes: We've already responded, Mr Chair, several times.
The Chair: All right. I think we're ready for the question. All in favour of the amendment? Opposed?
That is a tie vote, and the Chair will vote for the status quo. That's defeated.
Mr Curling: When you say the status quo, it's the government; it goes with the government all the time.
The Chair: We have a government motion.
Mr Hayes: I move that subsections 17(45) to (47) of the Planning Act, as set out in section 10 of the bill, be struck out.
What we're doing here is removing the minister's power to declare matters of provincial interest in matters that have either been referred or appealed to the Ontario Municipal Board. The government believes that retaining the declaration of provincial interest is inconsistent with the new planning system where municipalities make decisions and the OMB resolves disputes. Therefore, we are proposing to remove the right of cabinet to review and change decisions of the OMB. That's something everyone has wanted, especially Mr Grandmaître.
Mr McLean: Then, in all fairness, I would have thought the government would have cooperated when one of the opposition members made that amendment. It would have seemed appropriate, that we're really working hard here together.
Mr Hayes: What are you talking about, Al?
Mr David Johnson: Look at 64.
Mr Hayes: A person can accomplish a lot of things if they don't mind taking the credit, Al. Thank you for your support.
Mr Eddy: Mr McLean has pointed out that both the PCs and the Liberals were about to present a similar amendment, and therefore we agree with the amendment. I've looked over the reasons the AMO set out to support this recommendation, that they submitted on behalf of the municipalities of Ontario, and I certainly agree with the number of reasons they had for submitting the recommendation. I'm sure they'll be pleased this is happening, because they had some very serious concerns with those sections.
Mr McLean: Just for clarification, I think it should be noted that this government motion is new. It was brought in after they had seen the copies of ours and the Liberals' motion, and that's why the parliamentary assistant is moving it.
Mr Hayes: It just goes to show, Mr McLean, that this government is listening to people, has listened even to the Liberals and the Conservatives. When you come up with the good ideas, we support you.
The Chair: What a government.
I think we're ready for the vote. All in favour of this amendment? Opposed? That carries.
A Liberal amendment: The same? I presume they're not moving the other two.
We're not voting on this section because we've stood a number of items down to which we have to come back.
A new section, a government motion. Mr Hayes would like to stand this matter down. Is there unanimous consent?
Mr David Johnson: What are we talking about?
Mr Hayes: This is a delegation of approval authorities to local -- do you want me to read it into the record?
The Chair: Go ahead.
Mr Hayes: I move that section 10 of the bill be amended by adding the following section to the Planning Act:
"Delegations by approval authority
"17.1 (1) If a regional council or a district council is the approval authority under section 17 in respect of the approval of official plans of local municipalities, the council may by bylaw delegate all or any of the authority to approve amendments to official plans to a committee of council or to an appointed officer identified in the bylaw by name or position occupied.
"Conditions
"(2) A delegation of authority made by a council under subsection (1) may be subject to such conditions as the council by bylaw provides.
"Withdrawal of delegation
"(3) A council may by bylaw withdraw a delegation of authority made by it under subsection (1) and the withdrawal may be in respect of one or more requests for approval specified in the bylaw or any or all requests for approval in respect of which a final disposition was not made by the committee or officer before the withdrawal."
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The Chair: He would like unanimous consent to stand it down. Is there approval for that? Okay, that matter is stood down.
We'll go on to a Liberal motion.
Mr Curling: I ask that it be stood down too. I'll just read it in.
I move that section 10 of the bill be amended by adding the following section to the Planning Act:
"17.1 The council that is responsible for preparing an official plan may delegate its approval authority for official plans and plans of subdivision to a committee of council or a municipal official."
As the government motion was stood down, we're asking that this one also be stood down.
The Chair: Is there unanimous consent to stand this one down? Agreed.
Do you want to read the Conservative amendment into the record and then do the same?
Mr McLean: I move that section 10 of the bill be amended by adding the following section to the Planning Act:
"17.1 The council that is responsible for preparing an official plan may delegate its approval authority for official plans and plans of subdivision and any amendments thereto to a committee of council or a municipal official."
We stand that down too.
The Chair: All in agreement? Agreed.
Moving on to a new section --
Mr David Johnson: Mr Chair, just before we do, I had a question -- just a question, not an amendment -- with regard to a subsection in section 10, and you went whistling by it because you were only taking the amendments. Specifically, it's to subsection (7) in section 10. Shall I deal with that now, or are you going to come back to section 10 and deal with it later, or what?
The Chair: Let me try to understand where you are. You're in section 10. What page, what clause?
Mr David Johnson: Page 11 of the bill, subsection (7). It's entitled "Mandatory official plan." It's just a question; there's no amendment.
The Chair: Okay, let's deal with that now. We have to come back to deal with other matters, but we can do this now.
Mr David Johnson: I just wanted clarification from the staff on this section entitled "Mandatory official plan" in terms of which regions, municipalities, counties, districts etc etc in the final analysis will have mandated that they must have an official plan. Will it be all municipal entities within the province of Ontario?
Mr McKinstry: No. The areas required to have a plan will be all the regions, including the district of Muskoka; the county of Oxford; all the separated municipalities -- and that's most of the cities in Ontario; all the cities in territorial districts -- and that's the cities in northern Ontario; no local municipalities; and counties where they're prescribed by regulation.
Mr David Johnson: I see (b) of that subsection says "a prescribed county." Who are you intending to prescribe?
Mr McKinstry: We're right now commencing a consultation with counties to work out who would be prescribed to have an official plan.
Mr David Johnson: There are some -- what's the number you recognize, 817?
Mr McKinstry: Somewhere between 800 and 840.
Mr David Johnson: Want to pick a number: 820 municipal entities? What do you call them?
Mr McKinstry: Municipalities.
Mr David Johnson: So 820 municipalities. At the present time, what would be your guess at how many of them have official plans?
Mr McKinstry: I think the figure that was bandied around before was that about two thirds had an official plan.
Mr David Johnson: So somewhere around 600 would have official plans?
Mr McKinstry: Yes. More of the upper tiers and separated cities would have official plans, I would think.
Mr David Johnson: Once Bill 163 is proclaimed and comes into being, what is your guess at how many of those 820 would have to have a mandatory official plan?
Mr McKinstry: I don't know the exact numbers, but it would be a minority. Basically, it would be the counties, regions, and big cities, if you want to think of it that way.
Mr David Johnson: There would be roughly in the vicinity of 200 municipalities today -- and we won't hold you to that, but somewhere in that vicinity -- that would not --
Mr McKinstry: That would not have official plans, right?
Mr David Johnson: Right. Roughly how many of them would be required to have an official plan as a result of (7)?
Mr McKinstry: I don't know the exact number, is what I was saying. It's all the regions and all the separated cities and some of the counties.
Mr David Johnson: If this were The $64,000 Question and you were asked to guess, are we talking about a dozen, or 50, or half of them?
Mr McKinstry: I would certainly say less than 50.
Mr David Johnson: So maybe three dozen or thereabouts would be mandated by this bill to have an official plan?
Mr McKinstry: That would be a guess.
Mr David Johnson: And some of those would be -- there would be a couple of regions involved?
Mr McKinstry: All the regions would be required to have official plans.
Mr David Johnson: But most of them do today?
Mr McKinstry: They all do.
Mr Wiseman: York doesn't.
Mr McKinstry: Oh, yes, York. Sorry. How could I forget?
Mr David Johnson: I think there's a couple that don't, so there would be those two regions. Who else would be required that wouldn't have it today? Some counties that don't have it today would be required?
Mr McKinstry: I can't say that, because we still want to work with the counties. Some counties have and some counties don't have, and we'll work with the counties before we prescribe them to have an official plan.
Mr David Johnson: In a situation where a county doesn't have an official plan and maybe municipalities within that county do have, would a county still be required to have an official plan?
Mr McKinstry: I think we need to do a fair amount of work with the counties to make that determination, so I can't say whether the local official plans would be sufficient. It would depend on the issues within the county.
Mr David Johnson: When you say "work," my guess is that the word "money" is going to come up pretty quickly in these discussions. Where there's no official plan and as a result of (7) some municipalities will be mandated to have an official plan, starting from scratch, it could be an expensive proposition. What sort of attitude will the minister be bringing into the discussions when the word "money," "assistance" comes up to help municipalities that don't have an official plan create their first official plan?
Mr McKinstry: I think the parliamentary assistant has answered that quite ably: that we'll deal with requests on a case-by-case basis, obviously, and the minister will make a decision.
Mr David Johnson: So the answer is it's case-by-case basis, and who knows? Given the tight financial times and actually the loss of funding the municipalities have incurred, chances are they may not give funding.
Mr McLean: It would be more downloading.
Mr David Johnson: It says "Mandatory official plan" and I just wanted to be clear about who was going to be required to do something, which municipalities. I guess we'll have to wait until the negotiations have been completed.
Mr McKinstry: I think that's a good way of putting it: until the negotiations are complete.
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Mr Eddy: I have a question about excluding the separated township of Pelee, the only separated township in southern Ontario. Is that because you're treating them like other townships not in two-tier systems or something?
Mr McKinstry: I think the reason we put Pelee in that category is because it already is in a special category for some other powers; for example, consents are granted by the minister.
Mr Eddy: One-tier municipal government.
Mr McKinstry: Well, they are a separated municipality, but we have had a slightly different relationship with Pelee Island than we have had with some other municipalities.
The Chair: Seeing no further discussion there, we'll move on to section 11. Any questions or comments on section 11?
All in favour of section 11 as it stands? Opposed? That carries.
Section 12: There's a government amendment.
Mr Hayes: I move that section 19.1 of the Planning Act, as set out in section 12 of the bill, be amended by striking out "34 to 39, 45 and 63" in the first line and substituting "34 to 39 and 45."
This amendment deletes a cross-reference to section 63, as it is incorrect. This is a technical housekeeping amendment to the bill.
Mr McLean: Let's define this. This is talking about the unorganized territories, am I not right?
The Chair: Yes.
Mr McLean: It says "...within the planning area consisting of territory without municipal organization and the planning board shall be deemed to be a council of a local municipality and the secretary-treasurer of the planning board shall be deemed to be the clerk of the municipality for those purposes." Are you telling me that the unorganized territories are going to be deemed to be part of a municipal organization?
Ms Ross: This section simply gives the planning boards the ability to pass zoning bylaws in the unorganized.
Mr McLean: What planning boards? You have an unorganized territory and you'll have a planning director who kind of runs that whole area. Is there a planning board assigned to an unorganized territory?
Mr McKinstry: If I can clarify that, in the territorial districts of Ontario the minister may establish planning boards, and a number of planning boards have been established. They can either be entirely made up of unorganized areas or unorganized townships, or they can be a mixture of organized and unorganized. For example, Manitoulin Island is a planning board, and the whole island is a planning board, so it includes the municipalities and the unorganized areas.
The reason we did this was because traditionally the municipalities and planning boards have passed their zoning bylaws and the unorganized areas have been covered by ministers' zoning orders, and the planning board itself has an official plan that covers both. So what we wanted to do here was empower the planning boards to pass zoning bylaws for the unorganized parts in order to give some more local control of zoning.
Mr McLean: An example would be Kenora, with three municipalities surrounding it, and other than that it's all unorganized territory. So what you're saying is that the planning boards of those communities, as one, would take in all the unorganized territories outside of its jurisdiction.
Mr McKinstry: It could do. I'm not sure of the situation in Kenora. Planning boards are very specific entities where there would be representation from each of the unorganized and the municipalities. But I'm not sure Kenora has one. For example, Sault North: There is a planning board that is entirely made up of unorganized townships and it stretches from just north of Sault Ste Marie all the way up the side of Lake Superior, so that's all unorganized.
Mr McLean: How could you have a municipal representative from an unorganized territory sit on the planning board when it's not an organized municipality to start with? How could you have one of them when he's not already there in the first place?
Mr McKinstry: The minister appoints representatives from residents of the unorganized areas to sit on the planning board because there's no municipal entity. We've always had a challenge in the unorganized areas because there's a fairly strong resistance in unorganized areas to municipal organization, but we want to be able to get some local planning controls to those areas. This is a way of doing that.
Mr McLean: I do know that unorganized territories are looking for some planning. They want to develop cottage lots and they want to do some development, but they can't do it as it is. I'm wondering how this is going to fit in. I was hoping that a municipality that is already under the planning order could then take in the umbrella of an unorganized territory to be part of that for planning purposes. Is that what this is trying to do?
Mr McKinstry: It is and it isn't. Municipalities do have the ability, I believe -- I'm not very familiar with this legislation -- to request annexations, but this is not doing that. This is the way of the municipality and the planning board and the unorganized townships planning together, that they sit together on a board, municipal reps and unorganized reps; then they can do their planning, they can have an official plan, they can have land severance powers and could delegate subdivision powers to them. They would be able to exercise some powers over the unorganized, and the municipalities would have some influence on that, because they would all sit on the planning board together.
Mr McLean: Did your ministry staff have some discussions and correspondence with NOMA to deal with this issue?
Mr McKinstry: Yes. We have had ongoing discussions with NOMA.
The Chair: All in favour of this amendment? Opposed? That carries.
All in favour of section 12, as amended? Opposed? That carries.
Section 13: Any questions or comments on that section?
Mr McLean: This says, "Subsection 21(2) of the act is repealed." What is subsection 21(2) of the act?
Ms Ross: Subsection 21(2) is a power that the minister has to waive his or her right to approve official plans. I don't know that the power has ever been used. It was removed because the referral process no longer exists. We completely rewrote the official plan process and they now make a proposed decision which is referred, which is a little different than the former process.
Mr Wiseman: Where are we at?
The Chair: Section 13. Mr McLean is asking what section 21(2) of the existing act says.
Mr McLean: You've got a different act from me. I must not have the updated act.
The Chair: That's the act. This is the bill that's before us.
Any further questions? All in favour of section 13? Opposed? That carries.
Section 14: We have a government amendment.
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Mr Hayes: I move that section 22 of the Planning Act, as set out in section 14 of the bill, be struck out and the following substituted:
"Request to council
"22(1) If a person or public body requests a council to initiate an amendment to an official plan, the council shall within 120 days after the request is received hold a public meeting under subsection 17(9) or comply with the alternative measures set out in the official plan.
"Request to a planning board
"(2) If a person or public body requests a planning board to initiate an amendment to an official plan that applies in whole or in part to territory without municipal organization, the planning board or council of the municipality to which the proposed amendment applies shall within 120 days after the request is received hold a public meeting under subsection 17(9) or comply with the alternative measures set out in the official plan.
"Information etc to be provided
"(3) A council or a planning board may pass bylaws requiring that a person or public body that submits a requests under subsections (1) or (2) shall provide the prescribed information and material and such other information or material as the council or planning board may require, including any fee.
"Refusal
"(4) The council or planning board may refuse to accept or further consider the proposed official plan amendment until the prescribed information and material required by bylaw under subsection (3) are received and the periods referred to in subsections (5) to (10) do not begin until all of the prescribed information and material and fee are received.
"Failure to give notice
"(5) If a request is made under subsection (1) and the council fails to give notice of a public meeting under subsection (1), if required, within 90 days after the request is received, the person or public body that made the request may request council to forward the amendment to the approval authority for approval.
"Same, planning board
"(6) If a request is made under subsection (2) and the planning board fails to give notice of a public meeting under subsection (2), if required, within 90 days after the request is received, the person or public body that made the request may request the planning board to forward the amendment to the approval authority for approval.
"Where council fails to act
"(7) If a planning board recommends a proposed amendment for adoption to a council or to two or more councils pursuant to a request made under subsection (2) and the council or a majority of the council fails to give notice of a public meeting under subsection (2), if required, within 90 days after the request is received for the planning board, the person or public body that made the request may request the planning board to forward the amendment to the approval authority for approval.
"Refusal to adopt
"(8) If a request is made under subsection (1) and the council fails or refuses to adopt the proposed amendment within 180 days after the request is received, the person or public body that made the request council to forward the amendment to the approval authority for approval.
"Same, planning board
"(9) If a request is made under subsection (2) and the planning board fails or refuses to adopt the proposed amendment or to recommend the amendment for adoption within 180 days after the request is received, the person or public body that made the request may request the planning board to forward the amendment to the approval authority for approval.
"Where council fails to act
"(10) If a planning board recommends a proposed amendment for adoption to a council or to two or more councils pursuant to a request made under subsection (2) and the council or a majority of the council fails or refuses to adopt the amendment within 180 days after the request is received by the planning board, the person or public body that made the request may request the planning board to forward the amendment to the approval authority for approval.
"Information to be forwarded
"(11) If a person or public body submits a request to the council or planning board under subsection (5), (6), (7), (8), (9) or (10), the council or the planning board shall cause to be compiled and forwarded to the approval authority, not later than 15 days after the request is received, a record which shall include the prescribed information and material and such other information and material as the approval authority may require.
"Same
"(12) A person or public body that submits a request under subsection (5), (6), (7), (8), (9) or (10) shall provide to the approval authority the prescribed information and material and such other information or material as the approval authority may require, including any fee.
"Refusal to consider
"(13) The approval authority may refuse to accept or further consider the proposed official plan amendment until the prescribed information and material under subsection (12) and the required fee are received and the time period referred to in subsection 17(34) does not begin until all the prescribed information and material and the fee are received.
"Withdrawal of requests
"(14) If all the requests under subsection (5), (6), (7), (8), (9) or (10) made in respect of all or part of the proposed amendment are withdrawn and the council or the planning board failed to adopt the proposed amendment, the approval authority shall notify the council or the planning board and the council or the planning board may proceed to adopt all or part of the amendment, as the case may be.
"Same
"(15) If all the requests under subsection (5), (6), (7), (8), (9) or (10) made in respect of all or part of the proposed amendment are withdrawn and the council or the planning board refuse to adopt the proposed amendment, the decision of the council or the planning board is final.
"Application
"(16) Subsections 17(20) to (47) apply with necessary modifications to a proposed official plan amendment under this section."
Ms Haeck: I want to quickly ask a couple of things, more grammatical than substantive questions about the bill. At the bottom of the first page, the last line says "fee are received." I would think that should say "fees are received." Let's see; there was another instance. On page 3, "Refusal to consider," subsection (13), the fourth line should be "required fee is received" and the last line of the same section should be "and material and the fees are received." I think that probably will deal with tense agreements.
Ms Lucinda Mifsud: There's only one fee in each case. It's on a case-by-case basis.
Ms Haeck: Then I would say the verb needs to be changed.
Ms Mifsud: No. It's the information and material and the fee. Three things are received.
Ms Haeck: Oh, I see. I'm sorry.
Mr David Johnson: Everybody's an expert.
Ms Haeck: That's fine. It just didn't seem to jibe when it was read. My apologies.
Interjections.
Mr Hayes: A little order here, please. Let's go.
The Chair: What's going on here?
Moving on, perhaps an explanation before we continue.
Mr McKinstry: If I can give a brief explanation, this is a lot simpler than it sounds. Section 22 of the act is for situations where it is not the municipality wishing to amend their official plan but it is a private individual applying to amend their official plan. Section 22 provides a way of that private individual moving through the system if the municipality does not want to pass the amendment. What Bill 163 says is that if the municipality has not dealt with the amendment within 180 days, the applicant can request that it go on to the approval authority for a decision.
One of the concerns expressed by the development industry was that that means they always have to wait 180 days if the approval authority is not interested in pursuing the application. Basically, what we've done is we've said that if within 90 days no notice of the public meeting is given, there's a right to go on to the approval authority. Therefore, there's a maximum of 90 days before it can move on if there's no action by the municipality. If the municipality gives notice of the public meeting, has a public meeting and then takes no further action, then there's the 180-day mark in which it can go on to the approval authority. We basically added in there one more time frame.
Mr David Johnson: Actually, the 120 days is the same as our amendment, so I guess great minds think alike in that regard.
At the end of subsection 22(1) it says "...after the request is received hold a public meeting under subsection 17(9) or comply with the alternative measures set out in the official plan." I just can't recall what is meant by that last phrase, "with the alternative measures set out in the official plan."
Mr McKinstry: The Planning Act has a procedure whereby municipalities can set out alternative measures for notification of public meetings.
Mr David Johnson: So what does that mean here? You have 120 days to hold the public hearing for this application, or you have to satisfy whatever other measures the municipality has set out in its official plan for -- you say notification?
Mr McKinstry: One of the things that has happened in the past is official plans have been approved which authorize municipalities to give slightly less notice than 30 days. For example, some official plans may have said they could give notice of 15 days. What that would mean is that I think the 90 days would still apply, but then the public meeting would occur 15 days after that 90 days.
Mr David Johnson: So what you mean to say here is that if it's a shorter period of time, the 120 days is no longer applicable, necessarily. Is that what you're saying, that if they have a 15-day notice period, it would be -- 90 plus 15 -- 105 days?
Mr McKinstry: My understanding is that the 120 days would still apply. You would still have the right to go to 120 days to have the public meeting before you could send it on.
Mr David Johnson: Then what does it mean? You either have to have a meeting within 120 days or you have to comply with your alternative measures. You've got a choice, you can do one or the other.
Mr McKinstry: That's right.
Mr David Johnson: Give me an example of what the other would be so that you don't have to comply with the 120 days.
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Mr McKinstry: The other would be if the official plan contained a provision which said you didn't have to have a public meeting. Now, I'm not aware of an official plan that contains such a provision.
Mr David Johnson: That would be most --
Mr McKinstry: Unusual, yes.
Mr David Johnson: So is this a catchall phrase that doesn't mean anything?
Mr McKinstry: Those are the only two things, where one wasn't required or where there's less time.
Mr David Johnson: In the case of less time, I don't see how it's applicable --
Mr McKinstry: I think you're right. I don't think it would apply, because I think you've still got the 90 and 120.
Mr David Johnson: You've still got the 120 days. Then it would only apply, in your view, if a municipality had an alternative measure where they didn't have to have a public hearing for an official plan amendment, which would seem kind of remote, so I'm starting to wonder why on earth this phrase is in there; it doesn't seem to make any sense.
Mr McKinstry: Because you have to build every situation in legislation, just in case something happens that's not covered by the legislation.
Mr David Johnson: Even if we can't think of any possible scenario where one would exist at the present time. Okay.
Going to the next page, at the top of page 2 it says "the person or public body that made the request." First of all, looking at the phraseology "person or public body," I thought you indicated at the outset that this was for an individual making an application for a proposal. But presumably when you include "public body" it could be a government making a proposal for an official plan amendment. Is that what you're saying?
Mr McKinstry: It's entirely possible, yes.
Mr David Johnson: The province of Ontario may want to put an office building in Durham and they need an official plan amendment to do it.
Mr McKinstry: That's right. Now, the crown is not bound by the Planning Act, but usually the crown will follow the appropriate procedures.
Mr David Johnson: Okay. It was really the next part I was most interested in: "the person or public body that made the request may request council to forward the amendment to the approval authority for approval." Just by the way you've worded it, the choice is with the applicant whether to request or not. But it doesn't appear anywhere in here that I can see -- you can maybe point me to it. By the way it's phrased, council has the choice to obey or disobey the request; it's merely a request. Is there some other place --
Mr McKinstry: There's another provision that says that when the request is made, they have I think 15 days. Just let me find it. It's in subsection (11), which is the third page of this.
Mr David Johnson: Subsection (11). So that's what all that means. It's hard to read through three pages and make everything jibe.
Mr McKinstry: If the person requests to be sent on, then you refer over to subsection (11), which says that if that request is made, it shall be sent on within 15 days.
Mr David Johnson: So if you put those two subsections together, the applicant has the choice to request council to send it along, and then the council, according to subsection (11), must send it along. It might've been simpler if you put those two together.
Mr McKinstry: This is an issue of legislative drafting. I wouldn't touch it.
Mr David Johnson: If a municipality is proceeding in good faith -- we ran into this term "good faith" earlier this week -- but misses by a day or two, for some reason -- maybe the printing presses broke down, or heaven only knows -- this does not give any leeway. If they would've made it in 91 days but just couldn't make 90, for example, of course the proponent could weigh that and fail to appeal to the approval authority, but technically the proponent could proceed on that basis and require the local municipality to send it to the approval authority.
Mr McKinstry: Technically, if the time frame's not met, yes, the proponent could send it on. But it seems to make good sense to me that if progress has been made, why would you want to send it on to another approval authority?
One comment I'd have is that when you put in time frames, you've got time frames. You either have them or you don't have them. You've got to make a choice, I guess.
Mr David Johnson: That's the real world; it's tough. But one good reason would be that the proponent would think that the audience at the approval authority would be much better than at the local council, which, I would submit, would not be unusual. It's quite conceivable that that could happen. The regional government might take a more proactive view towards development than a local council, where the development might disrupt a local neighbourhood, for example, but in a regional context may not have much bearing.
Mr McKinstry: That, in my view, would be a different issue, where in fact the local municipality does not want this development to happen. The current Planning Act actually has similar provisions: We've always recognized that where the municipality is not acting there should be a way of a second look at it, so we're saying the approval authority. But my experience is that approval authorities and the OMB do take local municipalities' views very seriously.
Mr David Johnson: We haven't dealt very much with an approval authority, at least not in Metro we haven't. In Metro that system really hasn't been set up.
Mr McKinstry: The approval authority in Metro is the province, depending; if it's a subdivision, it's Metro.
Mr David Johnson: If Metro was set up as the approval authority, it would be interesting to see if there'd be this similar reaction. At any rate, we won't know that.
That probably addresses my other question as well, but it's hard to phrase the questions when you're reading so quickly. I'm looking at (14). It says, "If all the requests under subsection (5), (6), (7), (8), (9) or (10) made in respect of all or part of the proposed amendment are withdrawn...." What's that mean, if all the requests are withdrawn?
Mr McKinstry: What we're saying here is that the person who wanted it sent on has changed their mind. It's a way to deal with that change of mind.
Mr David Johnson: So one of the dates was missed and the proponent said, "Send it along to the approval authority," but then the proponent changed his or her mind. Is that what you're saying?
Mr McKinstry: That's right, and then the municipality could proceed to deal with it.
Mr David Johnson: "...all or part of the proposed amendment are withdrawn and the council or the planning board failed to adopt the proposed amendment, the approval authority shall notify the council...." I don't understand what that means, if that's what you're saying. If the proponent has withdrawn his or her request that the approval authority deal with it, presumably it's back at the local council again.
Ms Ross: Perhaps I can address that one for you. Two different situations can occur that would allow a proponent to request something to be sent on to the approval authority: a situation where council fails to do anything and a situation where council refuses.
Mr David Johnson: What's the difference?
Ms Ross: The difference is that in one case you've actually made a decision and in the other case you haven't. In one case you've said no, and in the other case you hadn't decided what you wanted to do yet. We're dealing in (14) with the situation where council hadn't made a decision yet.
Mr David Johnson: So that fails?
Ms Ross: Right.
Mr David Johnson: So council didn't make a decision within the 90 days, perhaps, and the proponent then sent it along to the approval authority. Then what happens?
Ms Ross: And then, if they withdrew their request -- maybe they got talking to the council of the municipality and thought they could make an arrangement, so they withdrew their request. At that point in time, the approval authority will tell the council, the council that had failed to adopt the original amendment that was requested, and then council can proceed to deal with it.
Mr David Johnson: All right. It's just funny wording again, when you said "and the council or the planning board failed to adopt." What you really mean is that the approval authority will notify the council or planning board which failed to adopt.
Ms Ross: That's right.
Mr David Johnson: So that's what all that means. Those are my questions.
The Chair: Anything further? All in favour of the amendment? Opposed? That carries.
We have a PC amendment.
Mr McLean: I move that subsection 22(1) of the Planning Act, as set out in section 14 of the bill, be amended by striking out "180" and substituting "120".
We've already passed it in the one we just carried. Therefore, we'll just withdraw that. It's already been passed.
Mr David Johnson: You're stealing all our good ideas.
Mr McLean: Am I not correct in saying it passed in 22(1)?
The Chair: Yes. There's a Liberal amendment next.
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Mr Grandmaître: I move that section 22 of the Planning Act, as set out in section 14 of the Bill, be amended by adding the following subsection:
"(3.1) If no request for referral has been made to the approval authority within 30 days of council having given notice of its decision, the amendment shall be deemed to have come into force on the day it was passed by council."
I guess it goes back to a previous question that was asked of staff, to put a time limit on just about everything. In other words, "If no request for referral has been made to the approval authority within 30 days" -- this is why it's in addition to subsection (3) -- "to the approval authority the amendment shall be deemed to have come into force on the day it was passed by council." Again it's to meet the time frame.
Ms Ross: I'm not really sure how this one would work, because the only situation in which a request for referral would be made is if council had either refused them or not made a decision. So when we say the amendment would be deemed to come into force, there wouldn't actually have been a decision by council to come in, unless we're saying the amendment would come into force --
Mr Grandmaître: Yes, "if no request."
Ms Ross: Right, but then it says "the amendment shall be deemed to have come into force on the day it was passed by council," but it was never passed by council because it refused it. That's how it got to section 22, that's how it got referred to the approval authority.
Mr Grandmaître: Okay. I'll withdraw this.
Mr David Johnson: I have a question. It's "no request for referral...to the approval authority," but if the council approved the application, it could still be objected to by somebody who lived in the neighbouring community. Is that what this is referring to?
Mr McKinstry: This is (3.1), so it follows subsection (3). Subsection (3) talks of the fact that if council refuses or fails within 180 days, it can go on to the board. So we're not clear about how this "no request for referral...within 30 days" comes into force, because it doesn't seem as if there's anything to come into force.
Mr David Johnson: First of all, the amendment was made before you --
The Chair: Mr Johnson, if I can, it's been withdrawn. You still want to speak to an issue that has been taken away?
Mr David Johnson: Yes.
The Chair: I'm suggesting that it is withdrawn, that there is nothing before us.
Mr David Johnson: Then we have our amendment, so let's move that forward.
The Chair: Let's move on to the PC amendment. It is identical, so you can move it and you can ask the same questions, I guess.
Mr McLean: I move that section 22 of the Planning Act, as set out in section 14 of the bill, be amended by adding the following subsection:
"(3.1) If no request for referral has been made to the approval authority within 30 days of council having given notice of its decision, the amendment shall be deemed to have come into force on the day it was passed by council."
Mr David Johnson: I see what you mean, that subsection (3) as written deals with council failing or refusing to adopt. But does it necessarily follow that subsection (3.1) has to have precisely the same meaning? It would seem to me that what could happen is that the council could approve of the application but some third party could object to it and ask for a referral to the approval authority.
Is that a possibility? Is that what's intended here? But if there were no such request, would this clause not come into effect at that point?
Ms Ross: I guess the problem we've got is that section 22 only applies in situations where council either fails or refuses to do something with the person's amendment. So if you weren't in section 22, you'd be back at 17, and it would be that a council adopted an official plan amendment and the process in section 17 would apply.
Mr David Johnson: The verbiage in section 22 deals totally, with the exception of this possible amendment, with those situations, but does that necessarily mean you couldn't put a clause in there that was sort of inconsistent with the rest of the direction of the clause?
Ms Ross: I think it would be very confusing to the public.
Mr David Johnson: I agree with you on that.
The Chair: We have another amendment by the Progressive Conservatives.
Mr McLean: I move that subsection 22(5) and (6) of the Planning Act, as set out in section 14 of the bill, be struck out.
The Chair: Do you want to speak to that?
Mr McLean: I want them struck out. Mr Johnson will speak to it.
The Chair: Mr Johnson, you're speaking to that? You don't have to. It's quite clear. Mr Hayes wants to react to that.
Mr Hayes: Now it's our turn. Can you explain to this committee what you are doing here? It does sound very confusing to me.
Mr McLean: We think subsections (5) and (6) should be struck out, and I want to know from you why they shouldn't be.
Mr Hayes: I'm not proposing that it be one way or the other. I want a clarification about exactly what you're seeing here. I don't know, maybe we'll agree.
The Chair: He just wants it struck out, that's it. I think he was quite clear in that regard, Mr Hayes. We're ready for the vote, perhaps.
Mr Hayes: We oppose it because really it's not clear.
The Chair: All in favour of the motion? Opposed? That's defeated.
All in favour of section 14, as amended. Opposed? That carries.
There's a new section, 14.1, a government motion.
Mr Hayes: I move that the bill be amended by adding the following section:
"14.1(1) Subsection 23(5) of the act is amended by striking out `but the decision is not final and binding unless the Lieutenant Governor in Council has confirmed it' at the end.
"(2) Subsection 23(6) of the act is repealed."
Mr Curling: What does that mean?
Mr Hayes: That's the one dealing with the provincial interest. As you know, we've taken steps that they won't be able to --
Mr McLean: Which number is this? Subsections 23(5) and (6)? I can't find it in my amendments.
Mr McKinstry: It's in the Planning Act, not in Bill 163. This was not part of Bill 163; you have to refer to the Planning Act itself.
The Chair: Do you want to see that section of the act?
Mr McLean: How come it's not in here if we're amending it?
The Chair: It makes reference to the act. Mr McKinstry was saying that.
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Mr McKinstry: Maybe, Mr Chair, I can read the act. Subsection 23(5) of the act says:
"The municipal board, after the conclusion of the hearing, shall make a decision as to whether the proposed amendment, or an alternative form of amendment, should be made" -- and here's the stuff that's been struck out -- "but the decision is not final and binding unless the Lieutenant Governor in Council has confirmed it." We've struck out "but the decision is not final and binding unless the Lieutenant Governor in Council has confirmed it."
We struck out (6) as well, and (6) is:
"The Lieutenant Governor in Council may confirm, vary or rescind the decision of the municipal board made under subsection (5) and in doing so may direct the minister to amend the plan in such manner as the Lieutenant Governor in Council may determine."
Mr David Johnson: So I presume this is a rubber-stamp at the end that took some time.
Mr McKinstry: No. This in fact was the declaration of provincial interest, where if it declared provincial interest on matters before the board, cabinet could decide whether it wanted to vary or rescind the board's decision. This is not housekeeping; this is actually a fairly major amendment.
Mr Grandmaître: It doesn't coincide with subsection (47), "Power of L.G. in C." on page 19.
Mr McKinstry: Yes, I think it would. The way the Planning Act worked, each of the Planning Act applications in the current Planning Act had a provision whereby cabinet -- the minister, I should say -- could declare a provincial interest on a subdivision or a zoning order or whatever. If the minister declared a provincial interest, it came back to cabinet for a final decision, and that is being dropped.
Mr Curling: Do you mean to say you've given the minister more power now because it doesn't have to go through cabinet? If you want to get the Lieutenant Governor's approval, it has to go back to cabinet and it usually gets moving up the line. You're saying it won't have that any more; you're dropping that.
Mr McKinstry: Sorry, I'm obviously not making myself clear. The current act says that where the minister declares a provincial interest, the board cannot make a final decision; it must go back to cabinet for a final decision. With this change, it means that the board makes a final decision and the minister has no power to bring the board's decision back to cabinet.
Mr Curling: So it's the other way from how I was thinking about it.
Mr McKinstry: That's right. What the government is saying here is that the provincial interest is inconsistent with local empowerment and that in fact the system should have its decisions made in accordance with the approval authority and the board.
Mr Curling: I may ask you to repeat that, but just bear with me a bit. The minister indicates he has provincial interest in this matter, so it goes back to the board.
Mr McKinstry: The minister can no longer do that after this amendment.
Mr Curling: He can no longer say he has provincial interest in this.
Mr McKinstry: That's right. This was a request of AMO's.
Mr Hayes: Do you like it?
Mr Curling: I want to say I like it, but it's not helping me just to understand it. It's such a reverse that I almost can't believe it, but if you are saying so --
The Chair: All right. All in favour of the amendment? Opposed? That carries.
Section 15: Any questions or comments on section 15?
Mr Hayes: Did we vote on 14?
The Chair: Yes, we did. That was it.
Are there any questions or comments on section 15? There are no amendments, obviously.
All in favour of section 15? Opposed? That carries.
Section 16: All in favour of section 16? Opposed? That carries.
Section 17: A government amendment.
Mr Hayes: I move that section 17 of the bill be renumbered as subsection 17(2) and the following subsections added:
"17(1) Subsection 26(1) of the act is amended by adding at the end `and determining the need to amend the plan to make it consistent with the policy statements issued under subsection 3(1).'
"(3) Section 26 of the act is amended by adding the following subsection:
"Consistency with policy statements
"(4) If the council of the municipality determines that the official plan is not consistent with the policy statements, the council shall adopt any amendment to the plan necessary to make it consistent with the policy statements and submit it to the approval authority for approval."
Interjection: Good amendment.
Mr Hayes: I think it's very good.
Mr McLean: Can I have a clarification? What happens if the ministry determines that the official plan is not consistent with the policy statements? You say in here "if...the municipality determines that the official plan is not consistent." What happens if the province says the plan is not consistent?
Ms Ross: The minister has the power in section 23 of the Planning Act to request the municipality to amend its official plan to make it consistent with the policy statements.
Mr McLean: Why do we need this amendment? If the council knows it hasn't met the policy statements, it's automatically going to bring in some amendments to make it consistent with the policy statements, I would think.
Mr McKinstry: We had a provision in the bill that said municipalities must review their plans every five years and, given the fact that this is a locally driven system and that there will be no provincial interest, there did seem a need to say that official plans be brought into consistency with policy statements and that an obligation should be placed on municipalities to do so, without the minister using the provisions under section 23.
Mr McLean: Does anybody know how often the government is going to review its policy statements? Is it going to do them every year, six months, every three or five years?
Mr McKinstry: We already passed a motion to say it will be every five years.
Mr McLean: But it could be less than five years, right?
Mr McKinstry: Five years is the maximum. It could be less, but my experience of policy statements is that they're difficult to bring out.
Mr McLean: But cabinet could determine that the wetland guidelines have not been working properly so it could make an amendment to them by regulation, and the municipality would then have to coincide with the statement or the regulation.
Mr McKinstry: If the government wished to change the wetland policy statement, it would have to go through the consultation processes -- the act says, "The minister shall consult" -- and then it could change it. But the municipality only needs to bring its plan into consistency with the policy statements at the time of its five-year review.
Mr David Johnson: I do find this curious, and I guess it's building on what Mr McLean is asking. The municipalities are under a whole plethora of directions, and I would kind of doubt that with each one of the provincial directives to municipalities there's a clause somewhere in legislation that says if they're "disobeying" the rules -- which I think was the phrase used the other day -- they must take action to obey. It seems to me it is somewhat unique to put this phraseology in here.
Can you give us other examples in planning, for example, where municipalities would be directed to obey if they're not obeying? Normally, we would just say, "Here's the law," and it goes without saying, as you said the other day. I guess I'm speaking through the Chair to the parliamentary assistant, to the staff. The staff the other day said they just anticipated that the municipalities would obey the law, but now they've gone a step further and have said, "If you're not obeying the law, you have to obey the law." I find it rather strange.
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Mr McKinstry: I'm not clear what the question is. All we're saying is that there is a need for the municipalities to not only review their plans, which is what the existing Planning Act says, but when they review them they're required to bring them into consistency with the policy statements.
Mr David Johnson: In Bill 120, for example, which isn't your bill, at the end of it do we put in somewhere, "If municipalities still have R1 zoning, you must review your plans and not have R1 zoning again"? I don't know how to make it more clear. You lay down the law in the bill, which you've done: The bill says municipalities "shall be consistent with" the policies. Not content with that, we come back again with the second phrase -- it seems like a second swat at the municipalities -- saying, "Notwithstanding that we told you earlier in the bill that you shall be consistent with the policies, for a second time we're telling you that if you find you're not being consistent, you must take action to be consistent." Why? What's the point? I don't understand.
Mr Hayes: What it's really saying is that if the municipality determines that its official plan is not consistent with the policy statements, it shall make the necessary amendments to its official plan.
Mr David Johnson: Well, of course. That goes without saying. Why would you put that in the bill?
Mr Hayes: But then the purpose of this is to bring the official plans in line with the policy statements. There's no guessing about it. We're saying, "These are the policy statements, and you have to be consistent with them."
Mr David Johnson: You're telling me that without this clause, if we didn't have this clause in, municipalities that had official plans that were inconsistent with the policy statements would not have been compelled to bring their official plans into consistency? I think that's rather bizarre, to tell you the truth.
Mr Hayes: Does this cause a problem for you?
Mr Curling: Following the direction of what Mr Johnson is saying to you, it says, "If the council of the municipality determines that the official plan is not consistent with the policy statements, the council shall adopt any amendment to the plan necessary to make it consistent." In other words, they must make an amendment so that it be consistent. If they determine that the plan is not consistent, have said, "It's not consistent," the council then says, "Go ahead and adopt any amendments to make it consistent." That's all we dealt with earlier on. That's what the whole thing is all about.
Mr David Johnson: That's right. That's what the whole thing is all about. I don't understand.
Mr Curling: Yes, to bring it into conformity and consistency. We're just overdoing this thing so much. We're climbing over rules upon rules. You're saying that things must be consistent or it won't be approved, and now you're saying if they find out their plan is not consistent with the policy statement, they must go ahead now and adopt amendments to have the plan consistent with the policy statement. It seems unnecessary to me.
Mr McKinstry: First of all, I should point out that the current Planning Act says the municipalities must review their plans every five years. We've simply added to that to say that when they review them, they must bring them into consistency. Our view is that in fact this is of benefit to the development industry, because it means that rather than having to go back and forth between the policy statements and the official plan, if the official plan is consistent, that means the developer looking to develop can look at the official plan and know with some confidence what's permitted. We felt quite strongly that the municipalities should bring their plans into consistency. The plans are, after all, the public documents at the municipalities.
Mr Curling: You're testing my memory now, because I know previously we dealt with that, saying that all plans must be consistent with the policies. We dealt with that earlier on.
Mr Grandmaître: Yes, section 6 of the bill, on page 5, subsection 3(5), says:
"Decisions consistent with policy statements
"(5) A decision of the council of a municipality, local board, planning board, the minister and the municipal board under this act and such decisions under any other act as may be prescribed shall be consistent with policy statements issued under subsection (1)."
Aren't we overdoing it by repeating ourselves?
Mr McKinstry: That is true. What we're saying is that where the municipality makes a decision -- so if they amend their plan or they approve a subdivision -- it must be consistent. But it is possible that at their five-year review, they don't amend their plan, so then they wouldn't have to be consistent.
What I was saying before is that we want to make sure that the local planning document reflects accurately the planning environment that the development industry must follow.
Mr Curling: The debate we had, when we were saying it must be consistent with the policy -- we had a long debate about that, and it said they have to be consistent with the policy. That debate was also attached with "having regard to" and "consistent with" the policy.
I hear what you're saying. You're saying they will discover that they're not consistent. As it says, "If the council of the municipality determines that the official plan is not consistent with the policy statements," it must then proceed to adopt a process to amend that, to bring it into conformity.
We argued earlier on that to do that would cost a lot of money, and who would pay for that? Remember that discussion we had? It is because we realize that they must do that, that part of the legislation was telling them they must bring it into conformity. I asked, who's going to pay for this? My dear parliamentary assistant would not tell me if he would be giving some funds so they could be --
Mr Hayes: I can't give you any funds.
Mr Curling: The municipality or the council. That debate went on. Now I'm hearing again, "We're going to put another piece in here to tell you that you must make amendments to conform with it." I think it's overkill. I think it's unnecessary to have that now. Impress upon me why it is so important to have it again, to just stick it to them one more time.
Mr McKinstry: What we've done is we've established a standard at the beginning of the act that says decisions "must be consistent with," and now we're trying to make sure that this gets followed through into the other processes through the act. It's a simple consequence of saying, "You shall be consistent with."
As I said before, it is important that the public have the information before them in the official plan, that the official plan not contain outdated policies so that the development industry doesn't know what the rules are. That's one of the main parts of this planning reform package, that the development industry knows what the rules are.
Mr Curling: But you did tell them that they'd have five years to bring it into conformity.
Mr McKinstry: Consistency.
Mr Curling: Consistency. They don't like the word "conform"; it's to be consistent. "Conform" may sound a bit too rigid.
They have five years in which to do so. They will have to do it; in other words, you've got to bring it into consistency within five years. Now we're saying: "We're going to tell you again. We're going to turn the dagger a little more. Down the road, you have to do that and submit it to the approval authority for approval." But I thought that's the way they had to do it previously. It was all stated out previously, and now I'm asking the same question again. I just wonder why.
Mr Grandmaître: Why we have to repeat it.
Mr Curling: We're repeating it. You're saying you want to be consistent down the road all the way, is that it?
The Chair: You're going to try again?
Mr McKinstry: What we're saying is that there needs to be some obligation on a municipality to actually follow through with the actions of the Planning Act. The current Planning Act says you have to do a five-year review and the bill says you have to "be consistent with." So what we're saying is that the logical outcome of that is that at the five-year review, which is the appropriate time, the right time, to do a comprehensive review, you bring it into consistency. That seems to us a little better than piecemeal bits and pieces being brought into consistency through the amendment process. In other words, the public actually sees this document and it's got all this stuff in it.
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Mr Curling: The difficulty I'm having is because I can't find it in the bill. You say it's in the Planning Act, but I don't have the Planning Act before me. You say, "Somewhere in that little part that you don't have before you" -- I'm just trying to tell the parliamentary assistant the difficulty I have with lack of staff and all that, you know. That is why I was trying to find out where that little niche was that you're putting it into, and now you're presenting it to me as part of the Planning Act where you're putting it in. Is that why I'm not getting it? I was looking in here and saying that all I had before me was all of that.
I would think, as a matter of procedure, Mr Chairman, that what we should be doing, really, as we keep on rewriting this legislation all the time as we go along each day and amendments are coming in every second --
Interjection: Here comes another one. Duck.
Mr Curling: That is why I was finding out where it is. We were consistent along here, and I gather that there's a little part of the Planning Act that we're going to say we'll fill in a little gap. Is that why I'm not getting it? I've lived with this for three or four weeks, and the poor people outside, who don't have even the staff we have to understand this -- boy, lawyers are going to have a field day.
Mr Hayes: That's why we're clarifying this, so they'll understand what the rules are. It's simple. See? It's education and training for all municipal councils, planning boards -- you know.
Mr David Johnson: Let me ask a question to the staff. If this bill is proclaimed, let's say, in January of next year and in February of next year a municipal council in Ontario somewhere determines that its official plan is not consistent with the policy statements, what will the council be required to do at that point?
Mr McKinstry: They will be required to bring their plan into consistency with the policy statements.
Mr David Johnson: So in February of next year, that council would be required to update its official plan.
Mr McKinstry: That's right.
Mr David Johnson: I guess I've swung around from thinking this has no consequence to thinking this is possibly the most onerous part of the whole bill. Technically, if this bill is implemented in January of next year, if all the councils sit down and look at their official plans, and in all likelihood a huge proportion of those official plans will not be consistent with the policy statements, then all those municipalities across Ontario, by this clause right here, will be compelled to start their official plan update at that point.
Mr McKinstry: Whenever the five-year review commences, the council will be required to adopt an amendment to bring it into consistency.
Mr David Johnson: Now you're telling me something different. When I asked you the first question, "If a municipality in Ontario determined that its official plan was not consistent, what would that municipality have to do in February?" you said at that point it would have to commence an update to the official plan. You didn't say anything about a five-year review. You said at that point they'd have to commence an update to the official plan.
Mr McKinstry: My understanding was that you said if they were commencing their five-year review.
Mr David Johnson: No, I didn't say anything about a five-year review. I mentioned nothing about a five-year review.
Mr McKinstry: Sorry, I misunderstood you.
Mr David Johnson: I said, in February of next year, if a municipality determined that its official plan was not consistent with the policy statements, what would it have to do at that point?
Mr McKinstry: Sorry, I misunderstood you. The requirement here is that at the time of the five-year review, they must bring their plan into consistency with the --
Mr David Johnson: I hear you say those words, but where do I look in this document, Bill 163, to point me to the fact that it is the five-year review? Certainly this amendment doesn't say anything about the five-year review.
Mr McKinstry: If I can read you subsection 26(1) of the current act, it says, "The council of every municipality that has adopted and had approved an official plan shall from time to time, and not less frequently than every five years, hold a special meeting of council, open to the public, for the purposes of determining the need for a revision of the official plan." And then we've added this subsection to that.
Mr David Johnson: So that's added on to that. And we can rest assured that (4) only pertains to what's in (1), the five-year update, which occurs, as we know from the chart that's been given to us, probably an average of about every 10 years in most municipalities. You'll assure me today that (4) cannot be interpreted by itself? Standing by itself it would mean that the municipality would have to come into consistency right away, not within the five-year plan.
Ms Ross: It's our view that by using the words "the council," we're referring back to the same council that was referred to in 26(1).
Mr David Johnson: I see. When you're talking about the five-year review, we all know that the five-year review very seldom occurs in five years. Will you also assure me that your interpretation of the five-year review would be the same as it is today? In other words, if a municipality determined today that it was not consistent with the policy statements, but its five-year review, because of lack of resources or whatever, didn't occur for another seven or eight or 10 years, that the ministry would not be forcing the municipality, at the five-year period, to update their official plan?
Mr McKinstry: I can't tell you what the ministry might do, as I'm only one staff member in the ministry. However, I'm not aware that the powers where the minister may require an amendment to the plan have been used. They may have been. I'm not aware of those circumstances.
Mr David Johnson: Could I ask you a technical question? The subsection reads, "If the council of the municipality determines...." Could you define the word "determines" for me?
Mr McKinstry: We have a dictionary handy if you'd like to look it up.
Mr David Johnson: What does it mean? Does it mean it has to be a council resolution? Does it mean that the planning --
Mr McKinstry: Oh. It's where council decides, where they conclude.
Mr David Johnson: When you say "decides," that doesn't mean anything. Councils have resolutions, they have motions. So what you mean is that there would have to be a council resolution, approved in the minutes, that the council has determined by resolution?
Interjections.
Mr David Johnson: If it's not that, then how else would council decide or determine?
Mr Hayes: When it says that the council determines or the council makes a decision, it's the council.
Mr David Johnson: I realize that.
Mr Hayes: Naturally, if the council decides or determines their business in council, there's no question that there should be a vote and a motion to make that determination.
Mr David Johnson: So you're saying, in fact, what I'm saying, that it's a motion.
Mr Hayes: Why, certainly it would be.
Mr David Johnson: So when council "determines," it has to be a motion of the council.
Mr Hayes: Right.
Mr David Johnson: But the staff looked puzzled. You understand, Mr Parliamentary Assistant --
Mr Hayes: Yes, we understand it, and they do too.
Mr David Johnson: But I haven't seen the staff agreeing with you yet.
Mr Hayes: They haven't sat on council like you and I.
Mr David Johnson: All right, so it has to be a motion of council. Then the converse of that means that if a council considers this matter, even though the ministry feels the council would be not consistent with the policy statements, if the council issues a resolution and that resolution says, "Moved that this council is deemed to be consistent with the policy statements," you would be satisfied with that resolution.
Mr Hayes: I guess they'd probably find out when it came time to put in a development or change the zoning. They'd find out at that time, I'm sure, that they would know whether they were consistent with or whether they weren't. If they're not consistent, I don't think it's any secret that they'd have problems getting approvals.
Mr David Johnson: I thought I heard you say, Mr Parliamentary Assistant, words like, "The council should decide," and "power to the councils." But if the council passed a resolution and said, "We deem ourselves to be consistent" --
Mr Hayes: None of us in this room, I don't think, are that naïve.
Mr David Johnson: -- you're saying the provincial government would not necessarily respect that, or perhaps the approval authority. Notwithstanding that resolution, the province might still say, "You're not consistent." Is that what you mean?
Mr Hayes: Yes, that's right.
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The Chair: All in favour of the amendment? Opposed?
Mr Hayes: It's unanimous again.
The Chair: All in favour of section 17, as amended? Opposed? That carries.
Section 18: Any questions or comments?
Mr McLean: Why are you taking "minister" out of section 18 and substituting "approval authority"?
Ms Ross: Because now we've changed the official plan section, so that official plans are now approved by approval authority rather than the minister. That's the terminology we now use in the official plan section.
Mr Hayes: Get Big Brother out of there.
The Chair: All in favour of section 18? Opposed? That carries.
Section 19: Questions or comments?
Mr McLean: Is section 19 referring to a secondary plan or a plan that a municipality may want to put on a hamlet, or an area that may be looking for development, that they can put on this secondary plan? Is that what section 19 is referring to? It talks about "the community improvement plan for the community improvement project."
Mr Ross: Section 19 is referring to community improvement plans, which are special plans that councils can put on for community improvement projects, but the only thing we did in that section was make complementary amendments to the numbering.
Mr McLean: Make amendments to which?
Mr Curling: There are no amendments we've got to that section?
The Chair: There are none, no. It's just as it reads there.
Mr Curling: Well, sometimes we don't know. Sometimes they're sneaked in.
The Chair: You wouldn't sneak things through the committee, of course. Any further questions?
All in favour of section 19? Opposed? That carries.
Section 20: There's a government amendment.
Mr McLean: On section 20, before you get to subsection (2), could I have a definition of --
The Chair: Hold on, Mr McLean. We haven't read this into the record yet.
Mr McLean: I wanted to ask before you got to that.
The Chair: Is this something else?
Mr McLean: It's section 20(1), not section 20(2). I want an explanation of section 20(1), talking about substituting "unstable, hazardous, subject to erosion or to natural or artificial perils." Why are you striking out "or unstable"? A bank can be unstable; it could be eroding.
Ms Mifsud: We're putting it back in. We took out "or unstable" because of the "or" and then we put it back in, "unstable, hazardous...." It's just to get rid of the "or". It's just a drafting.
The Chair: Okay, Mr Hayes, to your amendment.
Mr Hayes: I move that paragraph 3.2 of subsection 34(1) of the Planning Act as set out in subsection 20(2) of the bill be amended by adding after "For prohibiting" in the first line "all or any use of land and".
This was a drafting oversight. It's the same wording as already found in paragraph 3.1 of the same subsection.
Mr McLean: How do you determine a headwater area?
Mr McKinstry: This is an issue that flows out of the policy statement. Natural areas will be defined by municipalities in consultation with the provincial government. What we're doing is developing guidelines, developing them in consultation with the task force. It's a public process, and when that's gone through, then municipalities will be able to define these areas with these guidelines and with criteria. So I can't give you a definition of a headwater area; that's coming out of the policy statements. This is a way of implementing the policy statements.
Mr McLean: Would I be able to find it in the wetlands policy statement?
Mr McKinstry: I think it is in policy statement A, 1.1. It's also defined in the policy statement, and it means the source area of a stream.
Mr David Johnson: I don't know if this is the appropriate time, but Mr McLean has raised the issue of the policy statements. What's not clear in my mind is that we have the policy statements, and we know we must be consistent with the policy statements, we have a raft of principles on page 4 of the bill, and now we have the list here of environmental criteria of some sort. How do all these jibe together? I seem to have list upon list upon list of environmental concerns and principles and policies and whatever this is.
Mr McKinstry: Section 34 is an enabling section for municipalities to use if they wish. What it does is allow municipalities to control uses on these types of areas. It's the legal way, the legislative way, I guess, that municipalities can control areas they want to protect as a result of the policy statements. It is enabling for municipalities.
Mr David Johnson: Given that there are the policy statements, if municipalities choose to use them, are these an addendum, in a sense, to the policy statements? Do these modify the policy statements somehow?
Mr McKinstry: No, they are a way of implementing the policy statements. I believe the term is "applicable law." A zoning bylaw is applicable law, so if something doesn't conform to a zoning bylaw you cannot issue a building permit. So for the municipality to be able to refuse a building permit, they have to have used zoning to control uses on the site.
Mr David Johnson: I guess I'm saying there are environmental protections built into the policy statements, lots of them.
Mr McKinstry: That's right.
Mr David Johnson: You say this is enabling, so if the municipality chose to use these, it has the environmental controls contained in the policy statements, and these are added on as well to supplement them?
Mr McKinstry: This is what implements. There's an official plan of the municipality that must be consistent with the policy statements, and that sets out the broad general policy, but the thing that actually controls the use on the land is the zoning bylaw. In other words, the official plan of a municipality might designate an area for low-density use; the zoning bylaw would actually state the kinds of dwellings, the sideyard setbacks, the frontyard setbacks, all the details. That's really what this is getting at.
Mr David Johnson: If this is enabling and there's a choice for the municipalities to use it or not, and it's protection of land, there are private land owners who could indeed be involved in this. What sort of compensation -- I don't know what you'd call it; let's just use the word "compensation" -- would be required to those land owners as a result of the actions of the municipality under this section?
Mr McKinstry: This, in my view, is no different from the normal zoning practice of a municipality. In other words, in some areas of a municipality you can build one house; in another area of the municipality on a similar-size lot you can build a 50-storey high-rise. There's a vast difference in the value of land as a result of those zonings, but there has never been any compensation paid to the owner of land who can only develop a house, even though that owner is not able to reap the same benefits as the person who owns the land where you can build a high-rise.
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Mr David Johnson: What I'm wondering, though, is that there is a set of policy statements that govern Ontario, right across Ontario; every municipality must be consistent with these policy statements and there's environmental protection built in. Now we have further conditions that municipalities may or may not choose to use, as I understand it, beyond those policy statements, so some property owners may be subjected to them -- if I can use those words -- in some municipalities but not in others. Does that not raise concerns?
I'm just looking at how the clause starts. It says, "For prohibiting all or any use of land and the erecting, locating or using all or any class or classes of buildings...." So if in some areas of Ontario private property owners are prohibited from erecting or locating buildings or using some of their property, above and beyond the environmental policy statements of the province of Ontario, does this not suggest that perhaps there should be some form of compensation in those cases?
Mr McKinstry: I would return to my former point, which is that the planning system in Ontario always creates a system whereby some people have a greater use of their property than others, some people reap more value from their property than others. If you live in a city, your property is probably worth more per square foot than if you live in a rural area. That's the way the planning system in Ontario has always worked. So this is simply another part of that, whereby municipalities may zone natural areas where there may be no building. They may also zone areas for high-rises, for low-rises, commercial-industrial. They all have different values. No compensation has ever been paid to land owners for that fact.
Mr David Johnson: Are there any limitations on what a municipality may declare in terms of wetland or woodland, or ravine or wildlife habitat, corridor, shoreline corridor etc, etc? Are these in the eye of the municipality to determine?
Mr McKinstry: The policy statements set out what the province believes is significant. That comes through the policy statements and it'll be explained further in the guidelines. The municipality, if it wishes, could go further, so the municipality, in other words, could protect class 4 wetlands, but then the land owner has recourse to the Ontario Municipal Board, which will look first of all at the policy statement and then at the reasonableness of this action. There's always that recourse over to the Ontario Municipal Board if a municipality has gone further than the policy statements.
Mr David Johnson: But the municipality is entitled to go further than the policy statements through the clauses we're dealing with right now.
Mr McKinstry: The municipalities can go further, but it seems to me that the board would be looking to see whether or not this area was significant, so they'd be looking for studies to see why the municipality wanted to go further than the policy statements. In some cases there may be good reason, in others there mightn't be, but the board is there to determine whether or not their actions are reasonable.
Mr David Johnson: It should present some interesting court cases, I suspect, the use of the word "significant."
Mr Hayes: But then there's the other side of it: Municipalities have made zoning changes that would make someone's property more valuable. Are you suggesting that individual should pay that municipality money, give it money because their property is --
Mr Grandmaître: Lower his assessment.
Mr Hayes: No, no. You're saying in one way that maybe the government should compensate, but when someone's property is made more valuable, is that person going to pay the government more money? I think not.
The Chair: I think we're ready for the question.
Mr Curling: No, no. This concerns me quite a lot, especially in my area where the Rouge Valley runs in the backyard of many, many people. I have known cases where people's land is slipping away and they're asking the municipality to put reinforcement so it doesn't happen, and they are more or less quoting something like this. While the man's land is going away, his backyard, they don't want to do anything because of this part, paragraph 3.2, "For prohibiting...the erecting, locating or using" -- which you are amending anyhow -- "all or any class or classes of buildings or structures" in any defined area or areas.
The individual was saying, "My land is slipping away," but they come back to say that because the Rouge Valley runs behind, it's a sensitive area so they don't want to build anything behind that. Is this restriction protecting the municipality and the government not to do anything for this individual, but they have the recourse to go to OMB and say, "They're not going to do anything about this"? This is what I'm reading this section to say.
Mr McKinstry: I don't think this act or this section deals with whether or not the municipality might give a land owner assistance. What the policies do is possibly prohibit development in hazardous areas where there's slope slippage.
Mr Curling: Yes, on development. But the fact is that he doesn't want compensation. The land he bought in good faith, is paying taxes on, is going away into the river, and the municipality is saying, "We're not going to touch it because it's a sensitive area and all that."
Mr Hayes: I don't think that's it at all. They're saying you're not going to be able to build on it. There's certainly nothing in here that stops a person from protecting their property from erosion.
Mr Curling: Let's go to 3.1: "For prohibiting all or any use of land and the erecting, locating or using of all or any class or classes of buildings or structures on land that is contaminated, that is a sensitive groundwater recharge area or headwater area or on land that contains a sensitive aquifer."
I'm saying to you that this could restrict. When he asked for protection because his land is slipping away, the municipality refused to act on it because they're saying it's a sensitive area behind there. I could be wrong in all of this. I'm asking, what recourse would an individual have? Did you say, when answering Mr Johnson, that they can go to the OMB or appeal it, that that's the recourse that land owner would have?
Mr McKinstry: If I'm getting you clearly, you're saying that the municipality may refuse to help a land owner shore up their property or protect their property because they said it was sensitive?
Mr Curling: They can't build a structure, a wall, because his land is slipping away into that area. He can't build it and neither will they build it.
Mr Hayes: You couldn't do it now anyhow.
Mr Curling: What should he do then?
Mr Hayes: You're not going to be able to build on land that's going to erode and go into the river.
Mr Grandmaître: There's a shoreline policy.
Mr Hayes: It's already there. This is certainly not going to change that.
Mr Wiseman: What this policy will do is prevent builders from building in that kind of situation and putting future purchasers in that kind of situation. That's the way I read this, that they won't be able to do that. You can't build that close to --
Mr Curling: He's not building. He's trying to make sure that what he has doesn't slip away, and they don't want to do it.
Mr Wiseman: This is not going to prevent that person from doing what is necessary to shore up his land and prevent it from slipping away. What it's going to do is prevent a developer from putting a house that close to a ravine or an unstable piece of property in the first place, putting the purchaser into this kind of predicament.
Mr Curling: Let me hear from the officials, because I don't know if I could take your authority.
Mr Wiseman: They're nodding agreement.
Mr McKinstry: The zoning bylaw could allow exceptions to the prohibition on building to allow structures that in fact protect the bank or protect an unstable slope. The municipality could do that, potentially.
Mr Curling: But they refuse now to do that.
Mr Wiseman: Not because of this.
Mr Curling: Let me just hear from the officials, Mr Authority.
Mr McKinstry: The province is not going to intervene, I don't think, in a municipal zoning matter. If the municipality is not willing to spend money on a land owner's property, I don't think the province would intervene.
Mr Curling: He's also restricted from building anything.
Mr McKinstry: No. The municipality may decide where and when these restrictions should apply, and it would have the ability to make exemptions to those restrictions if it wished to allow structures to prevent erosion.
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Mr Grandmaître: My question is a very simple one. Have all these sensitive areas of this province been identified?
Mr McKinstry: No. The environmental areas, if you like, that have been identified by the province are provincially significant wetlands. As I've said before in this committee, there are a number of other areas in the policy statements which are to be protected; the natural heritage areas is how we refer to them. The process there is that we are writing guidelines and the province will set some criteria, and municipalities will actually define these areas themselves through their official plan preparation process.
Mr Grandmaître: Once these lands are identified, property owners will become losers for the simple reason they won't be able to erect a building or a structure on these lands, right?
Mr McKinstry: I think I've also mentioned in this committee that what we're finding is that many municipalities are ahead of the province in their policy work and are already defining things like ravines and stream corridors and woodlands and protecting them. In fact, many developers, I believe, think this is an enhancement to their development, where they have set aside areas as natural areas. What the province is doing is recognizing what the public is asking for and setting policies to protect natural areas.
Mr Grandmaître: Going back to the sensitive areas, once they're identified, won't municipalities need to amend their official bylaws to identify these sensitive areas?
Mr McKinstry: They will need to amend their official plans. Zoning bylaws implement the official plans.
Mr Grandmaître: Yes, but it could affect the zoning as well.
Mr McKinstry: Yes, certainly.
Mr Grandmaître: So municipalities, without compensation, because the province has identified these sensitive areas will have to abide by your policies and amend their official plans and possibly their zoning bylaws.
Mr McKinstry: In fact what I said was that municipalities would define the sensitive areas, not the province, and that municipalities would do that in conjunction with --
Mr Grandmaître: Their review?
Mr McKinstry: In their official plans, with their ratepayers and the groups in their municipalities. The other thing I said was that in fact planning in Ontario has always established or taken away value. That is the nature of planning, where some people can do things with their property that generate more revenue than others, if you like.
Mr Grandmaître: Let's talk about the values, then. Will the province reassess those properties?
Mr McKinstry: I'm not familiar with the assessment process. I don't believe the assessment will be affected by this.
Mr Grandmaître: At the present time, let's say a piece of land is zoned industrial or commercial or industrial, and it's declared to be a sensitive area. Naturally, the zoning will be affected. Will this property be reassessed to its proper value?
Mr McKinstry: I stand corrected. In fact, zoning is an important part of the assessment process.
Mr Grandmaître: It's very important.
Mr McKinstry: In fact, assessment would take into account the zoning on the property.
Mr Grandmaître: Now, will the province compensate the loss of value?
Mr McKinstry: There is no plan to pay compensation. As I said before, the nature of the planning system in Ontario is such that if you're in one area you get to do different things with your property than if you are in another area. That's always been the nature of the planning system in Ontario.
The Chair: All in favour of --
Mr David Johnson: I just want to read one more thing, from the Ontario Federation of Anglers and Hunters. I just happened to spot it here. They're commenting on this very section.
The Ontario Federation of Anglers and Hunters says: "Further, we are concerned that policies implemented under this specific provision of the act" -- they're referring to amendments to paragraphs 34(1)3.1 and 3.2 -- "have the potential to be unscientific and/or preservationist in nature; that is, they will unduly restrict private landowners ability to develop their lands for any purpose, regardless of its impact. This scenario is unacceptable to the Ontario Federation of Anglers and Hunters, as is the other extreme scenario, in which the legislation would fail to protect important natural features and functions."
Primarily, I think their message is that in their view, they don't feel that this section is very well defined, and they feel it should be better defined before being proceeded with.
Mr Hayes: They are assuming, and we do not agree with their interpretation.
Mr David Johnson: I beg your pardon.
Mr Hayes: We have a difference of opinion.
Mr David Johnson: I gather that.
Mr Eddy: Following up on that, there is a tremendous loss of development rights, as minor as they might be, and when it comes to assessment, assessors will have to recognize the loss in value. There will be a great loss and it will have to be recognized, because if the assessors don't do it, I'm positive the courts will. Assessment will be affected, and use of land is a primary factor in assessing properties. If you talk to any assessor, you'll find that: Regardless of the zoning, it's the use.
Mr Wiseman: On Mr Eddy's point, I would tend to say, yes, that's true, but any time you do an official plan and you don't give zoning at the highest densities and the highest utility, say, units per acre, then you're also implying a loss of potential.
Mr Eddy: That's not a downzoning.
Mr Wiseman: But according to the act, you should be able to do downzonings now, but because of implied development rights, that's not usually allowed or done without some kind of compensation. When you're talking about this, if land has lowest implied development rights value now -- and we already assume that municipalities, through their official plans, have the right to designate that land and to determine what developments, if any, there are going to be on it, and at what level of the hierarchy in the zoning structure. I would agree with you, but I would just that this is one more consideration.
Mr Curling: Precedent has been set for contaminated lands, where assessment had been revalued and has dropped with possible contaminated soil. Not only that: Even their houses have been compensated for because of devaluation by the contaminated soil. Reassessment is a very, very important part of all of this, and I hope the parliamentary assistant takes that into consideration. Maybe you should take time to relook at this one, stand this one down maybe, be sensitive to those people who are losing their property, as the individual in my area who wants to protect his kids from falling into a hole.
Mr Hayes: Come on, let's quit being ridiculous. This stuff here is not going to cause that kind of problem for anybody's property, where it's going to cause their kids to fall in the stream. Get real. If there's a problem there, they can fix those kinds of problems. You're going a little too far now, Mr Curling.
The Chair: All in favour of the government amendment? Opposed? That carries.
Moving on: Section 20 continues; a Liberal motion.
Mr Eddy: I move that subsection 34(1) of the Planning Act, as set out in subsection 20(2) of the bill, be amended by adding the following paragraph:
"3.4 For entering into agreements regarding the provision and availability of services they are responsible for at the time of rezoning."
We support, of course, the inclusion of a new section in the act enabling the approval authority to provide for the lapsing of draft approval for plans of subdivision and the ability to extend this lapsing time. This amendment would give the approval authority the ability to set a date for the expiry of draft approvals so that draft plan approvals would be terminated in cases where the development was allocated water and sewer capacity but has not proceeded to final approval.
The wording of this section needs to be amended to clarify that only the sewer and water allocation, as opposed to the plan itself, should lapse within the specified time period. That sounds very logical to me. It's a request of AMO.
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Mr McKinstry: If I can make a comment on that, the government has a motion further on in the package which would allow two different things to happen, either together or separately: One is lapsing -- that's already in the bill -- and the second is that we are setting up a system, through a motion, which would allow municipalities to lapse the water and sewer capacity allocation to a plan of subdivision; they could either lapse the lots and the allocation or they could lapse only the allocation. So we are actually doing this, but we have a slightly different mechanism to do it. Our mechanism would be giving the municipality the ability to pass a bylaw which gives capacity and then could take it away.
Mr Wiseman: This raises an interesting question. If the municipality chose to lapse just the sewer and water capacity but to leave the subdivision plan in place, and then later on down the road the proponent of the subdivision comes forward and says, "I'm ready to build," but there's no sewer and water capacity left, would the proponent then be able to sue the municipality for taking away his sewer and water capacity while still leaving the plan of subdivision in place?
Mr McKinstry: The developer would know that when he or she got their draft approval, there was a time limit, so they would not be able to go to court and claim they were unaware.
The other thing I'd point out is that the subdivision would only be draft-approved, it wouldn't be final-approved, and there'd be no zoning. It's when there's zoning in place that you can require the municipality to issue a building permit.
Mr Wiseman: That really makes things interesting, doesn't it? If they have building permits and they don't exercise the building permits, will they still be time-constrained, or is it that as soon as they get their first building permit they're not time-constrained any more?
Mr McKinstry: What I'm saying is if the capacity is being lapsed, it means the subdivision has not received final approval; therefore, you won't have zoning in place and therefore you won't be able to get a building permit. You couldn't get to final approval until you got your capacity back.
Mr Wiseman: The comments we heard from the small builders was that if they have a plan of subdivision and they have final approval, they can build at any pace they want -- two houses a year, there houses a year -- and they won't have their plan of subdivision lapsed?
Mr McKinstry: That's right. If they have final approval, they're done.
Mr Wiseman: We've got lots of different scenarios.
The Chair: Further questions? Mr Eddy has moved this amendment. All in favour of that amendment? Opposed? Okay, that's defeated.
A PC amendment: Is it the same or slightly different?
Mr David Johnson: This is the same motion, so we'll withdraw it.
The Chair: Very well. Moving on: a PC amendment.
Mr David Johnson: I move that subsection 20(2) of the bill be struck out.
We've had quite a lengthy debate about this. It just revolves around an uneasiness about the interpretation of the sections here, the small-l liberal use of the word "significant," which is going to be open to various interpretations.
As I mentioned, the Ontario Federation of Anglers and Hunters called the clause "unscientific." I guess that's another way of saying it's not very well defined. We also have the protection of the policy statements for environmental matters and we have the protection of the various principles that are enunciated earlier on, so the motion here is to strike out this clause.
The Chair: Discussion? All in favour of the amendment? Opposed? The amendment is defeated.
We have a government motion.
Mr Hayes: I move that section 20 of the bill be amended by adding the following subsection:
"(3.1) Subsection 34(12) of the act is amended by inserting after `persons' in the last line `and public bodies.'"
This is also a technical, housekeeping amendment to a provision in the act. This amendment just adds "public bodies" to persons to be prescribed to receive notice of public meeting and application to amend the zoning bylaw.
The Chair: Discussion? All in favour? Opposed? That carries.
A government motion.
Mr Hayes: I move that subclause 34(25)(a)(iv) of the Planning Act, as set out in subsection 20(10) of the bill, be struck out and the following substituted:
"(iv) the proposed bylaw or the proposed amendment to a bylaw passed under this section is premature because the necessary public water, sewage or road services are not available to service the land covered by the proposed bylaw or the proposed amendment to a bylaw and the services will not be available within a reasonable time;"
I think we've discussed "reasonable time" several times.
Mr David Johnson: Can I just clarify? This section of the bill pertains to what?
Mr McKinstry: Zoning bylaws.
Mr David Johnson: So this would be an amendment to zoning bylaw application, and then some authority -- which authority is it? -- would be empowered to dismiss.
Mr McKinstry: Where a zoning bylaw is appealed to the Ontario Municipal Board, the Ontario Municipal Board has powers to dismiss. We're changing slightly one of those powers, the one based on the fact that the application is premature.
Mr David Johnson: And you're defining "premature," as in earlier discussions, so that "premature" can only pertain to public water, sewage or road services not being available.
Mr McKinstry: That's right.
Mr David Johnson: All right. I guess the same discussion holds true, then.
The Chair: It would.
All in favour of the amendment? Opposed? That carries.
Another government amendment?
Mr Hayes: I move that section 20 of the bill be amended by adding the following subsection:
"(12) Subsections 34(27) to (29) of the Planning Act are repealed."
This actually removes the minister's power to declare the matter to be of provincial interest. It's self-explanatory.
Interjections.
The Chair: Do you want Mr Hayes to repeat the explanation to this?
Mr McLean: What page is that on, page 23?
The Chair: Of the bill, you mean? Page 25. Mr Hayes, do you want to explain the effect of the amendment?
Mr Hayes: It's in the act and not the bill, first of all, but it removes the minister's power to declare the matter to be of provincial interest.
Mr Curling: That slows me down, but that's okay. We can't find it.
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The Chair: All in favour of the amendment? Opposed? That carries.
Mr McLean: I didn't see it carry. There's only one that voted.
Mr Hayes: It sure did. Actually, these two guys and myself carried it, without them.
The Chair: I didn't see anyone opposed either. All in favour of the amendment? Please, would you just put your hands up one way when the Chair says that? Opposed? That carries.
The Chair: We have a Liberal amendment that follows. Your motion is identical, isn't it, so you're not moving that, correct?
Mr Eddy: It looks exactly the same as the one the government sneaked in ahead of us and numbered at a lower number than ours. What do you call that, being upstaged? What's the term?
The Chair: And the Conservatives, similarly? You're not moving yours, correct? Okay.
We then have a government motion following that.
Mr Hayes: I move that section 20 of the bill be amended by adding the following subsection:
"(12) Subsection 34(34) of the act as re-enacted by the Statutes of Ontario, 1993, chapter 26, section 53, is amended by adding after `person' in the third line `or public body'."
This is another technical, housekeeping amendment to a provision in the act.
The Chair: Questions? All in favour? Opposed? That carries.
Just as a reminder, (12) will change to (13) because of the previous amendment that carried, which was (12), and this will become (13).
Mr McLean: Just a minute. What section are you talking about?
The Chair: There was a previous motion that passed, and that was --
Mr McLean: You want to bring all these last-second motions in and then try to slip them all through?
The Chair: No, this is a numbering issue. The previous one had (12) in brackets; this one has (12) in brackets, and it just becomes (13), that's all. It's just a numbering matter. Where it says (12) in brackets it becomes (13) as a numbering item.
Mr Drummond White (Durham Centre): With respect, Mr Chair, it's not an issue for the committee. It's something that's dealt with in the drafting of the bill.
The Chair: It would just be corrected by staff under normal circumstances, correct.
All in favour of this section, as amended?
Mr David Johnson: Mr Chair, have we dealt with motion 87?
The Chair: That is a different matter, a new section.
Mr David Johnson: Well, it's section 20.1. I see the number 20 in here and I thought you were dealing with all of 20.
The Chair: It's a new section; 20.1 will become a new section.
Mr David Johnson: All right. I just wanted to --
Mr Curling: So we're taking care of 20 now.
The Chair: All in favour of section 20, as amended? Opposed? Okay, that carries.
We're into a new section, a government amendment.
Mr Hayes: I move that the bill be amended by adding the following section:
"20.1 (1) Subsection 36(3) of the act is amended by striking out `30' in the fifth line and substituting `90'.
"(2) Subsection 36(4) of the act is amended by striking out `agencies' in the fifth line and substituting `public bodies'."
This change is necessary to bring the holding bylaw section in line with the new provision that council has 90 days to consider a rezoning application in section 34 of the act.
Mr McLean: Mr Chair, we held meetings across this province on Bill 163 and we had many delegations in talking about it. Today, we're appearing with the original act, which nobody's seen, nor have we dealt with that in committee. I don't happen to have a copy of it because I didn't think I would need it because I thought we were dealing with the amendments in here. Why are we dealing with this other legislation? We're amending the Municipal Act without seeing what it is.
The Chair: Obviously, some matters relate to the bill from time to time, so these sections do that. Mr McKinstry, do you want to comment?
Mr McKinstry: I can read the section for you.
The Chair: No, he understands that.
Mr McLean: I don't need the section. We are dealing with this.
The Chair: I understand, but there are times when motions relate to the original act, so some changes are made or reference made to it. I'm not sure how we can be helpful with, except for the members to go through --
Mr McLean: That wasn't what we were bringing in our amendments for: dealing with the original act. The ministry is doing that without our knowledge, not knowing that that's what you're doing.
The Chair: Except, Mr McLean, these motions have been in our hands for some days now, and we presume that if the members would review this, they would refer to the original act when necessary.
Mr McLean: There's only so many hours in the day, Mr Chair. We can't sit up all night going through this whole pile of amendments and all the other acts --
The Chair: I understand, but I'm not sure how else to proceed.
Mr David Johnson: Can I make a suggestion? It's now about two minutes to 5. Would it be possible for the staff to get us a copy of this particular section? It seems to require maybe a little clarification on our part, and then the next time we pick up, we'll have that, and we'll be able to --
The Chair: Sure, but I'm prepared to adjourn this, because it'll take more than moment or two to deal with this matter.
Mr Curling: Before we adjourn, Mr Chair, Mr McLean made a very important point. I think it was raised before. While we are trying to be as constructive as we can in helping this government bring about a good bill, what is happening here is that from time to time, as a matter of fact more times than we thought necessary, we're referring to the act, which we don't have before us.
You're saying you want to know how you can be helpful, and there's a suggestion made that we get this act. What we are doing now, what is before us, is this bill that has all amendments to this act -- I don't think I'm getting the attention here at all.
The Chair: If I can, I think that if members need the act, they should get one.
Mr Curling: It's surprising, Mr Chairman, that you always seem to answer my question before I even ask it.
The Chair: Mr Curling, it's just that I was dealing with Mr Johnson; he was raising a point.
I feel we can adjourn, and that will give you all sufficient time in the meantime to get the act, review it and refer to any of the motions so that you will be properly prepared when we come back.
Mr Hayes: You'll have a month to do that.
The Chair: That's right. This committee is adjourned.
The committee adjourned at 1658.