Strategic planning/zoning in Canada is undertaken primarily at the local level by municipal or regional governments. The authority for such local governance is derived from, and defined by, the laws of the province within which the property is located, and so can vary in both substance and procedure across provinces.
Generally, provincial legislative schemes empower or require local governments to enact local comprehensive planning and policy documents (variously called growth strategies, official plans, official community plans or development plans depending on the jurisdiction), which establish a broad policy framework and objectives to guide development in the local area. Such general and policy documents are usually implemented by detailed land use regulation such as zoning and subdivision by-laws, which have the force of law and directly impact the development rights of landowners.
While provincial governments have largely delegated their jurisdiction over land use and development control to local governments, provincial governments may directly exercise authority over land use in a number of matters such as agricultural land, riparian land, environmental protection, expropriations, heritage sites, highways and provincially significant projects.
Additionally, federal authorities exercise a level of land use control in the areas of navigable water, communications, certain aspects of environmental protection, and aeronautics, among other areas, which impact the use and development of private property.
Aboriginal lands in Canada are governed under land regimes that differ significantly from the provincial planning and zoning legislation and controls described in this chapter. The applicable controls and requirements for development on Aboriginal lands can only be determined on a case-by-case basis depending on the location and nature of the development.
Last modified 22 Mar 2024
Yes, plans for new construction or refurbishment of an existing building must typically be reviewed and approved by the applicable local government. In addition to development controls under the relevant land use planning instruments, local governments have an array of other legal tools at their disposal that they may use to control site development. These include: building by-laws, land use covenants entered into between a landowner and a local government or utility provider, heritage controls, environmental controls as well as compliance with local zoning and subdivision by-laws.
Depending upon the scope, scale and location of the project, other local, provincial and federal agencies may need to be consulted as well.
Last modified 22 Mar 2024
Some planning instruments, such as building and demolition permits, include detailed design, appearance and method of construction objectives and standards for the design and construction or alteration of a building. Building permits, and other similar controls, are a means of ensuring that buildings and structures are built safely, and are built in a location and for a purpose permitted by other local planning instruments. Such building controls and regulations are typically based on national or provincial building and construction codes.
In most cases the relevant local government should be consulted to determine whether a building permit is required before construction proceeds.
Last modified 22 Mar 2024
Zoning controls impose legal restrictions on the use to which land may be put and any change in the use of a building. In most cases, a change in use will require a permit, approval or consent from the applicable local authority.
If the landowner’s desired use is prohibited by the current zoning, the landowner may apply for a variance of the applicable provision in the local zoning control or a change of use may be permitted by rezoning the land through an amendment of the relevant planning instrument. This will usually involve a public participation process and hearing.
Even in the case of a 'permitted' use, some local authorities will require the issuance of an approval to authorize and document a change of designated use.
Last modified 22 Mar 2024
Generally speaking, it is the local government which regulates the development and use of individual parcels of real estate. There may also be provincial or federal regulation in special cases, usually reserved for major projects of provincial or national significance, or projects falling under federal heads of power (such as aeronautics and telecommunications).
The legislation which applies is generally provincial planning legislation, and official plans and by-laws enacted by the local government pursuant to provincial legislation. Federal legislation applies to matters that are regulated by a federal authority.
Last modified 22 Mar 2024
There are a number of other statutory permit regimes dealing with matters related to planning and environment consent. The other permits or approvals that may apply to a particular development depend on the nature of the development and can only be determined on case-by-case basis. These may include heritage requirements, provincial and federal environmental requirements, Aboriginal heritage and consultation related requirements and similar matters. Local authorities also have by-laws or local laws which will sometimes regulate matters in a more detailed way than the provisions of development and planning schemes. These controls might regulate advertising signs, car parking and access, tree cutting and other similar matters.
Last modified 22 Mar 2024
In many cases, local governments have by-laws that set out the local government’s application procedures for obtaining permission for development or carrying on a new designated use.
The process for obtaining permission generally involves the submission of an application, the form of which is prescribed by the local authority, describing the proposal. The local authority will review the application and the information accompanying it. On the basis of this review and, in some cases, consultation with professional experts, a report will be prepared by local government staff which will recommend whether the request should be granted or refused and also recommend conditions that should be attached to an approval.
Depending on the nature of the proposal and on the by-laws and rules of the local government, the final decision on the application will either be made by the local elected body or planning staff under powers delegated to them by the local government. Where the desired use of the land is not already 'permitted' or otherwise allowed in the applicable zoning district, approval of the elected body of the local government will often be required.
Depending upon the type of approval sought, the local government may conduct a public hearing at which members of the public are given an opportunity to present opinions for or against the development proposal. The applicant will also be given an opportunity to make submissions and respond to the submissions of the public. Local governments may in some cases provide for a public hearing even when there is no such requirement under the applicable legislation or by-laws.
If permission for development or changing the designated use is refused, an appeal may be submitted to a local appeal board or to the courts in the form of an application for judicial review challenging the local government’s action.
Last modified 22 Mar 2024
In some cases third parties do have a right to object. For example, in some provinces it is a requirement for particular types of development that notice of the proposed permit or approval be given.
If a public hearing is required in respect of the development, members of the general public have the right to voice objections to development proposals at public hearings. In some circumstances, certain third parties may have the additional right to appeal the grant of approval.
Last modified 22 Mar 2024
While the process varies between provinces, a decision – denying or approving the request – can usually be the subject of some form of judicial review.
The applicant may appeal a denial to an administrative review body or a court (in case of a refusal or in an appeal against imposed conditions). In some circumstances, certain third parties may appeal a decision to approve an application. Court proceedings generally involves review on administrative law grounds; eg failure to provide procedural fairness, having regard to irrelevant considerations or improper purposes, or a lack of jurisdiction.
Last modified 22 Mar 2024
This depends on the type of approval sought and the particular authority making the decision. Decisions by authorities in more heavily regulated areas will generally take longer than decisions made by authorities in less regulated areas.
Decisions which entail a public hearing or approval by the local elected body may take from several months to more than a year from the time an application is submitted to the time the approval is granted. Decisions requiring only the approval of the local government staff may take as little as a few weeks.
Last modified 22 Mar 2024
Applicants typically have the right to seek judicial or administrative review of a denial of an application or against imposed conditions in the case of an approval. In some circumstances, certain third parties have the right to appeal a decision to approve an application.
Last modified 22 Mar 2024
Each province has its own regime for the making of agreements with local authorities and utility providers. Some forms of development will require the entering into of an agreement under which the developer agrees to do certain things or make specified payments to mitigate the effects of the development. Other agreements may relate to the provision of utility services and the installation of utility and/or transportation infrastructure. The type and form of agreement will depend upon the particular local practice and applicable provincial laws. In some cases these agreements are recognized by legislation and may be registered on title as a form of covenant.
Last modified 22 Mar 2024
The time period for development or the carrying on of a designated use may be established by provincial legislation, local rules and by-laws or the terms of the specific permit or approval. Such instruments may require development of the subject property to commence within a specific period of time following the approval. Such instruments may also establish a finite period of time during which a particular use is permitted to operate, after which the applicant must re-apply for approval of the continuation of the use.
Last modified 22 Mar 2024
Any land subject to a permit must be developed strictly in accordance with any permits issued and the designated use of the land. Fines for non-compliance may be imposed, and the local authority may bring civil proceedings in court against the owner of the subject land to enforce compliance.
In certain areas, third parties may apply to court to enforce local government development controls. The law surrounding the standing of third parties to enforce development controls is complex and varies across provinces and local governments; however, third parties would generally be required to show that they are affected by the applicable control in order to have standing to seek enforcement.
Last modified 22 Mar 2024
Does public law control whether a landowner may construct a new building or refurbish an existing building on its land?
Yes, plans for new construction or refurbishment of an existing building must typically be reviewed and approved by the applicable local government. In addition to development controls under the relevant land use planning instruments, local governments have an array of other legal tools at their disposal that they may use to control site development. These include: building by-laws, land use covenants entered into between a landowner and a local government or utility provider, heritage controls, environmental controls as well as compliance with local zoning and subdivision by-laws.
Depending upon the scope, scale and location of the project, other local, provincial and federal agencies may need to be consulted as well.
Last modified 22 Mar 2024