Generally, if a development proposal does not conform exactly to a zoning by-law, but is desirable and maintains the general intent and purpose of the official plan and the zoning by-law, an application may be made for a minor variance. For example, a property owner with an odd-shaped lot may propose a development that does not meet the zoning by-law’s minimum side yard setbacks. In this case, granting a minor variance eliminates the need for a formal re-zoning application. However, unlike a zoning amendment, it does not change the existing by-law. A minor variance allows for an exception from a specific requirement of the zoning by-law for a specific property, and allows the owner to obtain a building permit.
Minor variances are obtained by applying to the local committee of adjustment, which is appointed by council to hear applications for permission to vary from zoning by-law standards applications. The application process includes a public hearing and a decision by the committee of adjustment. Applications for minor variances are generally assessed against four tests set out in the Planning Act, however municipalities can augment these tests through locally-developed ones as set out in an applicable by-law.
Any person or a public body may appeal a decision of the local committee of adjustment to the Ontario Land Tribunal or a Local Appeal Body if the municipality has chosen to establish one. The Ontario Land Tribunal or Local Appeal Body may dismiss an appeal or make any decision that the committee could have made on the original application.
The Planning Act applies when a property is proposed to be subdivided into separate parcels of land that can be sold separately. One way of subdividing property is through a subdivision plan that is prepared and submitted to the appropriate approval authority. Your municipal staff or planning board officials will advise you on which body approves subdivision plans in your municipality or planning area. Subdivision approval ensures that:
the land is suitable for its proposed use
the proposal conforms with the official plan and zoning in your municipality, as well as with provincial legislation and policies
your municipality is protected from developments that are inappropriate or may put an undue strain on municipal facilities, services or finances
Decisions must be consistent with the PPS and conform any applicable provincial plan.
Subdivision approval is a two-step process. The process begins when a property owner (or an authorized agent) submits a proposed draft plan of subdivision application to the approval authority for review. The approval authority consults with municipal officials and other agencies that are considered to have an interest in the proposed subdivision (such as utility companies). In addition, a public meeting must be held with advance notice. Each application is reviewed in light of existing policies, legislation and regulations.
Comments received from the consulted agencies (including the municipality in which the proposed subdivision lands are located) are also reviewed. The approval authority may either “draft approve” or refuse an application. A draft approval will generally be subject to one or more conditions that must be fulfilled before the subdivision plan is eligible for final approval and registration.
These conditions might include:
a road widening
archaeological assessment
parkland dedication
signing of a subdivision agreement between the municipality and the developer to secure various obligations that continue beyond final approval
rezoning requirements
For example, the property owner may be required, as a condition to granting final approval, to enter into a subdivision agreement with your municipality and/or the approval authority to guarantee that services within the subdivision (such as roads and sidewalks) will be constructed to your municipality’s standards.
If council wants to ensure that the applicant follows through with the development, a lapsing provision can be established at the time of draft approval. This is a time frame within which the conditions must be satisfied before the draft approval lapses. If the applicant is unable to fulfill the conditions prior to the lapsing date, the Planning Act permits an extension to the period of draft approval. However, when determining whether a draft approval should be extended, provincial policies and plans must be considered in the review process.
When all draft approval conditions have been met, the subdivision plan receives final approval and can then be registered. The registered plan is a legal document that sets out the precise boundaries of the property, the dimensions of the blocks and building lots and the widths of all streets, walkways, etc., within the property.
Certain persons or public bodies, as identified in the Planning Act, who make their views known by making a verbal presentation or written submission to the approval authority before draft approval is granted may appeal a decision or conditions within 20 days. However, only the applicant and certain persons or public bodies who made a written submission or verbal presentation to the approval authority before it made its decision may appeal conditions of approval after the 20 days have expired. Certain persons or public bodies who made a written submission or oral presentation to the approval authority before it made its decision, or made a written request to be notified of any changed conditions, may appeal any changed condition for which notice is required to be given.
If the subdivision approval authority does not make a decision within the legislated timeframe, the applicant may appeal the lack of decision to the Ontario Land Tribunal.
If a plan of subdivision has been registered for eight years or more and does not meet the growth management objectives of provincial policies or plans, municipalities are encouraged to use their authority under the Planning Act to deem the plan to not be registered and, where appropriate, amend site-specific official plan designations and zoning by-law permissions.
Subdivision approval authorities also have authority to grant approval of condominium proposals pursuant to the Condominium Act, 1998. Although the condominium approval process has not been included in this section, it is similar to the subdivision process with certain modifications.
Before an application is submitted, the applicant should consult with municipal staff or the approval authority
Following the pre-consultation, a complete application is submitted to the approval authority
The approval authority ensures notices of the application are given and a public meeting may be held
The approval authority will make its decision to approve the draft plan of subdivision with conditions or refuse it
Notice of decision is sent to the applicant and those requesting notification.
Certain persons or public bodies may appeal to the Ontario Land Tribunal (OLT)
If an appeal is made, the OLT may dismiss the appeal without holding a hearing or will hold a hearing and make a decision
If no appeal is made and the applicant fulfills all conditions of draft approval prior to the lapsing date, the plan of subdivision receives final approval and can be registered
Once a plan of subdivision receives final approval and is registered, lots can be sold and transferred
Your municipality can also use the consent process for subdividing property. For example, a property owner who wants to create only one or two new lots may apply for a consent (sometimes referred to as a “land severance”). Consent-granting authority may reside with a municipal council, a committee of adjustment, a land division committee, a planning board or the Minister of Municipal Affairs and Housing. Municipal staff will advise you on which body is responsible for land severances in your municipality. Consent decisions must be consistent with the PPS and conform or not conflict with any applicable provincial plan.
When evaluating a consent application, the approval body consults with the municipality in which the subject lands are located, and with agencies that are considered to have an interest in the proposed consent. Many approval bodies will also hold a public meeting with advance notice. Once the approval body has made a decision, it must notify the applicant and any person or public body that has requested notification within 15 days. A 20-day appeal period follows the giving of the notice. If the consent-granting authority does not make a decision within the legislated timeframe, the applicant may appeal the lack of decision to the Ontario Land Tribunal (OLT).
Similar to a subdivision draft approval, a consent approval (known as a provisional consent or consent-in-principle) may have certain conditions attached to it. There may be requirements for a road widening, parkland dedication or a rezoning. If the consent conditions are satisfied within one year, the consent-granting authority issues a certificate of consent. If any of the conditions remain unsatisfied, the provisional approval expires automatically.
Appeals to the OLT – or to the local appeal body, if the municipality has chosen to establish one – must be filed with the consent-granting authority. When a decision is appealed, the OLT or local appeal body holds a hearing and can make any decision that the consent-granting authority could have made on the application.
It is important to note that a consent (or plan of subdivision) is required in order to sell, mortgage, charge or enter into any agreement for a portion of land for 21 years or more. If the two parts are split already (by a road, for example) consent may not be needed. Other instances requiring consents include rights-of-way, easements and changes to existing property boundaries.
If a landowner is proposing to create a number of lots, a plan of subdivision rather than a consent is generally the best approach for the proper and orderly development of the property.
Before an application is submitted, the applicant should consult with municipal staff or the consent-granting authority
Following the pre-consultation, a complete application is submitted to the consent-granting authority
The consent-granting authority gives notice of the application and a public meeting may be held
The consent-granting authority will make its decision to give either provisional consent or to refuse the application
Notice of decision is sent to the applicant and those requesting notification
Any person or public body may appeal to the OLT or local appeal body if one is established
If no appeal is made, when the conditions of provisional consent are satisfied, a certificate is issued and lots can be transferred
If an appeal is made, the OLT may dismiss the appeal without holding a hearing or will hold a hearing and make a decision
Site plan control gives municipalities detailed control of how a particular property is developed and allows municipalities to regulate the various features on the site. Council can designate areas of a municipality for site plan control, in which case developers must submit plans and drawings for approval before undertaking development. Site plan control can regulate certain external building, site and boulevard design matters (for example, character, scale, appearance, streetscape design). Further, you may require a site plan agreement with a developer. The agreement could set out details such as parking areas, elevations and grades, landscaping, building plans and services. The agreement can be registered on title and must be complied with by the owner and all subsequent owners.