The End (or at least the beginning of the End) of the OMB

On April 4th of this year an important change in Ontario took place. This change received relatively little fanfare, however, it promises to have a lasting and positive impact for municipalities like Richmond Hill. On April 3rd, the Ontario Municipal Board (OMB) development appeal system was allowed to end,  and a new land appeal system known as LPAT (Local Planning Appeals Tribunal) designed to replace the OMB, came into force and effect.
 
From now on, when a dispute occurs between a development applicant and the municipality and/or residents, the application will be appealed to LPAT not the OMB. The new system will generally mean that more consideration will be given to the elected municipal council’s decisions on planning matters. 
 
Unless the decision of council was made contrary to the municipality’s Official Plan and the Regional and Provincial planning documents, the new appeal body will have limited power to overturn Council decisions or provide a partial or modified approval that is different to the Council’s decision.
 
Under the OMB system, a decision by Council could be replaced or approved in a modified form, by the OMB. Under the OMB system this has frequently been allowed to happen even in situations where Council’s decision was consistent with the municipality’s Official Plan as well as Regional and Provincial Planning documents, but disregarded by the OMB. Under the new LPAT system a Council decision cannot be overturned unless the Council decision is not consistent with the municiplity’s plans, the Region of York’s plans or the Province’s plans.  Further LPAT cannot provide a modified approval of the application as the OMB has been able to do in the past. 
 
LPAT has a much more straightforward mandate. LPAT has the authority to rule that the Council decision was in conformity with the in place planning regulations, in which case the Council decision will stand. Alternatively LAPT can rule that a Council decision is not in conformity, in which case the decision of council will be referred back to council for another decision that does conform to the Official Plan.
 
Furthermore, under the new LPAT system, hearings will not start from scratch (known as de novo) like they did under the OMB. Under the LPAT system, all information presented up to the date of application will be considered, and thus the Council’s rationale for the decision and staff’s recommendations will be seriously and thoroughly considered should an appeal occur. This alone is important because local rationale contained in a decision by council will now play a much more important part in a final decision by LPAT.  In general, there will be more emphasis on complete applications and justifications by applicants up front at the time of the application, rather than on-going justifications and modifications that occur right up to, and including during the hearing itself. For more complete information on the new LPAT please visit –

http://www.mah.gov.on.ca/Page14965.aspx
 
It is very unfortunate that many applicants have recently rushed to exercise their right to appeal to the OMB before the final deadline. Throughout Ontario there has been a significant increase in appeals as the OMB deadline approached. Under the transition rules these appeals are grandfathered under the old OMB rules. As a result, the current OMB now has a significant backlog in the queue. This alone seems proof positive that some in the development industry see the new system as favouring local municipal decision making. 
 
Once the backlog works its way out of the OMB system decisions made by councils like ours will become much more locally based, and any new appeals will be heard under the new LPAT system.
I am proud to have been be an active part of this change. In February of 2016 I moved a motion at Richmond Hill Council that helped to bring about this positive change (to view the motion visit http://davidwest-richmondhill.ca/ontario-municipal-board-omb-reform/). At the same time, a number of other municipalities also passed similar motions or endorsed Richmond Hill’s motion. This province wide action lead to the formation of our Municipal Leaders Group that was formed to advocate for OMB reform. A Municipal Leaders Summit was also convened that produced our list of recommendations to the Ontario government for reform of the OMB (to view the report visit – http://davidwest-richmondhill.ca/omb-reform-municipal-leaders-summit-recommendations-report/ ). It is interesting to note that many of these recommendations were captured in the new LPAT legislation.
 
Thanks to colleagues from 16 municipalities including Aurora, Newmarket, Markham, Cambridge, Kitchener, Guelph, Welland, Georgina, Uxbridge, Vaughan, Whitby, and Burlington who worked together to see this change come to fruition.
 
I am proud of the contribution that we made, and I am excited to see this leadership translate to more control over the built form of our communities in the future. After all, the citizens of a community and its elected leaders know their towns and cities far more than an un-elected body like the OMB. Local decision making should rest within a community and the damage that has been caused for decades by the OMB had to end.