Proposed land use guidelines have consequences for Ontario planning approvals

Introduction

The Province has proposed changes to the guidelines used to assess the impacts of noise, dust, air pollution and odour from industries on sensitive land uses in Ontario when making municipal land use planning decisions. The proposed guidelines have wide-ranging implications and introduce broader areas of study and more onerous requirements than the current D-Series Guidelines.

The most significant proposals include:

• expanding the planning approvals to which the guidelines apply, to include lower level approvals such as minor variances and site plan approval;
• increasing the Area of Influence (AOI) and Minimum Separation Distance (MSD) associated with various classes of industry, and increasing the number of classes; and
• introducing a requirement to demonstrate a need for a proposed sensitive land use where the lands are within (1) a facility’s MSD or (2) a facility’s AOI and mitigation is required.

The proposed Land Use Compatibility Guidelines (Compatibility Guidelines or Guidelines) will be of interest to planning decision makers, landowners and consultants. The Guidelines, as drafted, will introduce obstacles for those proposing infill redevelopment or expansions to existing industries, and to those charged with processing applications at municipalities. It is understood there will be no transition for applications that are currently under review or appeal such that, once the Guidelines are adopted, they will apply to all land use decisions made after that time.

Background

On May 4, 2021, the Ministry of the Environment, Conservation and Parks (MECP) released the Compatibility Guidelines and a proposed Guideline to Address Odour Mixtures in Ontario (Odour Guidelines) to be used by planning authorities when making municipal land use planning decisions. The MECP is accepting comments on the Compatibility Guidelines and Odour Guidelines until August 6, 2021.

The Compatibility Guidelines replace a number of existing D-Series Guidelines: D-1 (General), D-2 (Sewage Treatment), D-4 (Landfills and Dumps), and D-6 (Compatibility between Industrial Facilities). It does not replace D3 (Gas or Oil Pipelines and Facilities) or D5 (Water and Sewer),

Application of the Compatibility Guidelines

The Compatibility Guidelines will apply when an approval under the Planning Act is required in one of the following circumstances:

• A new or expanding sensitive land use is proposed near an existing or planned major facility.
• A new or expanding major facility is proposed near an existing or planned sensitive land use.¹

The Odour Guidelines have broad application and include guidance for those assessing potential odour impacts from major facilities at sensitive land uses as part of a compatibility study required in the land use planning process in accordance with the Compatibility Guidelines.

As outlined in the Compatibility Guidelines, “planned” major facilities or sensitive land uses are those land uses already designated in a municipality’s Official Plan and zoned in the municipality’s Zoning By-law.

New requirement to demonstrate compatibility for site plan and minor variance decisions

The Compatibility Guidelines apply to the following Planning Act approvals:

• Official Plan and Official Plan Amendments, including Secondary Plans;
• Community planning permit systems;
• Zoning By-laws and Zoning By-law Amendments;
• Plans of subdivision or condominium;
• Consents;
• Minor variances;
• Site plan control and other planning approvals.

The addition of lower level approvals like site plan control to the list of Planning Act approvals that trigger land use compatibility requirements will have significant implications for landowners and developers who have zoning permission, but have yet to finalize site plans. In the absence of any transition provision, an infill condominium building now caught within an expanded MSD or AOI around a major facility may be required to complete the more exhaustive demonstration of need process, a tougher test than would have been required to establish the use entitlement in the first place.

The Guidelines also introduce a need to demonstrate compatibility when seeking a minor variance to an applicable zoning by-law. This is particularly likely to impact residential landowners (who may be required to complete a compatibly study to permit, for example, a renovation to an existing residential dwelling), and Committees of Adjustment throughout Ontario.

The Compatibility Guidelines do not apply when there are existing incompatible land uses (e.g. existing sensitive land uses near existing major facilities) and no Planning Act approval is triggered. The inclusion of site plan control and minor variance in the scope of the Guidelines’ application means this exemption would only be available in the case of an as of right development permission that only requires a building permit.

Areas for study significantly expanded

Area of Influence (AOI)

The Guidelines require a compatibility study if a land use proposal would place a new or expanding sensitive land use within a major facility’s Area of Influence, or if a new or expanding major facility would capture sensitive land uses within its Area of Influence.

An Area of Influence is “an area surrounding the property boundary of an existing or planned major facility where adverse effects on surrounding sensitive land uses have a moderate likelihood of occurring.”

The Compatibility Guidelines are explicit that the Area of Influence is measured from the property boundary. The existing guidelines are the source of significant debate on this point.

If a proposed sensitive land use within a major facility’s Area of Influence requires mitigation to minimize adverse effects from the facility, the proponent must demonstrate a need for the proposed sensitive land use in that location, as discussed below.

Minimum Separation Distances (MSD)

The Guidelines continue to recommend Minimum Separation Distances - “the distance within which adverse effects and compatibility issues are highly likely to occur”. However, the Compatibility Guidelines impose a new requirement for a proponent of sensitive land uses within a facility’s Minimum Separation Distance to demonstrate the proposed use is needed in the proposed location (again, as discussed below).

Sensitive land uses proposed within a facility’s Minimum Separation Distance should only be permitted “where there is a demonstrated need for the proposed use in that location and no other location is feasible, and mitigation to prevent adverse effects is possible and will be implemented.”

The figure below illustrates the relationship between a major facility, its Minimum Separation Distance and its Area of Influence:

Source: MECP, Proposed Land Use Compatibility Guideline, p .19

Classes of major facilities

The existing guidelines ascribe Areas of Influence and Minimum Separation Distances to three (3) classes of major facilities, generally ranging from 20 metres to 1,000 metres. The Guidelines introduce two new classes of facilities (Class 4 and Class 5) and significantly expand the Area of Influence and Minimum Separation Distance for Class 1 to 3 facilities.

The table below provides a comparison of the current and proposed AOIs and MSDs:

Demonstration of need

The Compatibility Guidelines introduce an onerous test for proponents of sensitive land uses on lands within an existing major facility’s Minimum Separation Distance or, when mitigation is required for a sensitive use, within the Area of Influence.

To demonstrate such a need, the proponent must perform “an assessment that determines whether there is an identified need for the proposed use in the proposed location and evaluates alternative locations for the proposed use if avoidance is not possible.”

A demonstration of need is only required from proponents of sensitive land uses and are required when:

• Mitigation measures are needed when a new sensitive land use is proposed within a major facility’s Area of Influence; or
• A new sensitive land use is being proposed within a major facility’s Minimum Separation Distance.

The Guidelines provide that planning authorities “must only” permit the proposal if they are satisfied that there is an identified need and sound planning rationale for the proposed use in that location, and that alternative locations or areas for the proposed use have been evaluated and there are no reasonable alternative locations or areas.

The Compatibility Guidelines provide guidance on the information that should be included in a demonstration of need, including the identification of other locations in the municipality that have existing permissions for the proposed use and an explanation as to why the use is not proposed in that location. The Guidelines expressly note that current ownership of the property is not a factor to be considered in the assessment of need.

We believe the new demonstration of need test (greatly simplified above) is unduly onerous and is counter-productive in terms of intensification within existing built boundaries and urban regeneration. For example, it is hard to imagine the residential development occurring and planned in large areas along Toronto’s waterfront, and being planned in the Port Lands, as being feasible under these proposed Guidelines. This may be said for many urban waterfronts where a few key, long-tenured industries remain in relatively peaceful co-existence with new residential development planned or constructed nearby. Equally, industry will be concerned about the ability to locate, or expand, given this new test in conjunction with the new MSD and AOI parameters. It is our expectation that all stakeholders affected by these proposed Guidelines will be concerned about what is currently proposed.

Conclusion

BLG’s Municipal & Land Use Planning lawyers and planners are available to discuss how the Compatibility Guidelines may impact you. Please reach out to any of the key contacts below for assistance.

¹ The definitions of the terms  “major facility”and “sensitive land use” in the Compatibility Guidelinesare the same as those found in the Provincial Policy Statement, 2020 (the PPS).