Bill 25 (Red Tape Act) and Amendments

to the Conservation Authorities Act.

The Urban Environment and Development Committee recommends that Council concur with the following action taken by the Urban Environment and Development Committee, having regard that the last date by which written submissions would be accepted by the Standing Committee on Administration of Justice was October 19, 1998:

"The Urban Environment and Development Committee reports having:

(A)endorsed the recommendations embodied in the following report (October 1, 1998) from the Commissioner of Urban Planning and Development Services; and

(B)advised the Minister of Consumer and Commercial Relations, and the Standing Committee on Administration of Justice, that the amendments proposed by the Minister would add significantly to the "red tape" involved in development proposals located near conservation areas.":

Purpose:

(1)To advise Council of the implications for the City of amendments to the Conservation Authorities Act contained in Bill 25 (Red Tape Act); and

(2)to recommend that Council take a position with respect to these proposed amendments.

Source of Funds:

There are no immediate funding requirements arising from this report.

Recommendations:

(1)That the Urban Environment and Development Committee inform the Standing Committee on Administration of Justice of the City's concerns and position regarding Bill 25 and the proposed changes to the Conservation Authorities Act by providing this report, and that the decision of the Committee be endorsed by Council;

(2)that, in order to clearly eliminate duplication and potential conflict between a municipality's planning authority under the Planning Act and a conservation authority's authority under the Conservation Authorities Act, the Province be urged to consider the following changes to Bill 25, Schedule I, section 12, concerning the Conservation Authorities Act:

(i)delete 28 (5) (e) to clearly avoid possible duplication of planning authority approval functions by a conservation authority outside of valley and watercourse areas;

(ii)delete 28 (20) (b) to clearly avoid unnecessary duplication of planning approval functions by a conservation authority concerning internal and other alterations to existing buildings in valley areas; and

(iii)eliminate remaining concerns for duplication arising from the use of the term "development" by specifically addressing these in consultation with the Toronto and Region Conservation Authority (TRCA) and the Province and clarifying details of the appropriate regulatory powers of conservation authorities, either in a supporting generic regulation, a TRCA specific regulation, or through a memorandum of understanding between the City and the TRCA, as provided for under the Act; and

(3)that the Commissioner of Urban Planning and Development Services be authorized to develop agreements with the Toronto and Region Conservation Authority (TRCA) to clarify our mutual interests and respective roles and functions in the areas of natural hazards, natural heritage areas and other related matters.

Background:

The Province has introduced Bill 25, "An Act to Reduce Red Tape by Amending or Repealing Certain Acts and by Enacting Two New Acts", which passed second reading as of June 23, 1998. Included within the Bill are changes to many Acts including several to the Conservation Authorities Act. Proposed changes to the Conservation Authorities Act include repealing Section 28 and the substitution of new wording.

The Province of Ontario has invited public response to Bill 25. The last date for verbal submissions to be made to the Standing Committee on Administration of Justice was September 19, 1998. Thelast date by which written submission will be accepted by the Standing Committee is October19, 1998 (at 5:00 p.m.).

Comments:

The proposed changes to Section 28 of the Conservation Authorities Act include the complete deletion of the "old wording" and its replacement with "new wording". For the most part, the old and the new are essentially similar. However, some of the changes which were made in order to provide clarity and simplicity in one respect have inadvertently created the opposite in respect to other matters. This is of concern because of the potential consequence of duplication and conflict with municipal planning authority approval functions and conservation authority functions in respect to development.

Discussion between TRCA staff and City of Toronto staff reveals that the prime intent of the changes was reasonable and well-intentioned and that some changes will be of benefit to residents of Toronto, but that the secondary consequences of the same changes do not apply well to all areas, especially in the City of Toronto, and were not foreseen.

This report and its recommendations represents a co-operative approach to the problems by both the TRCA and City staff. It is hoped that the recommendations provide a pragmatic resolution that is appropriate for conservation authorities in general, and the TRCA in particular, as well as the City of Toronto's streamlined planning approval authority.

Outline of the Problem:

The existing Section 28 of the Conservation Authorities Act describes the matters for which a regulation may be established. These are simplified here as: the alteration of a watercourse; construction in a flood plain; and the placing of fill in watercourses, flood plains or on adjacent valley side slopes.

The existing clause regarding the regulation of construction in flood plains is provided in Section28(1) (e) and is as follows:

Prohibiting or regulating or requiring the permission of the authority for the construction of any building or structure in or on a pond or swamp or in any area susceptible to flooding during a regional storm, and defining regional storms for the purpose of the regulations."

The proposed clause regarding the regulation of development in flood plains and elsewhere, as in new Section 28 (1) (c), is as follows:

"Prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches, or pollution or the conservation of land may be affected by the development."

The concern with the new wording in Bill 25, Schedule I, as expressed above, stems very largely from the expansion of the areas to which the regulation may apply [s.28(1)(c)], the use of the broader term "development", as defined elsewhere [s.28(20)], and the vagueness of the area in which it may come to be applied [s.28(5)(e)].

Formerly, the area in which conservation authorities could regulate construction (now expanded to development) was limited to flood plains. Under Bill 25, conservation authorities may review development in flood plains and on adjacent valley slopes (from top of bank to top of bank, with possible extra setback allowances where reasonable) as well.

"Development" is defined within the proposed Conservation Authorities Act [s.28(20)] to mean:

"(a)the construction, reconstruction, erection or placing of a building or structure of any kind,

(b)any change to a building or structure that would have the effect of altering the use or potential use of the building or structure, increasing the size of the building or structure or increasing the number of units in the building or structure,

(c)site grading, or

(d)the temporary permanent placing, dumping or removal of any kind of any material, originating on the site or elsewhere;".

Section 28 (20) (b) significantly expands the role of the conservation authorities into areas of community planning approval, and could include such development proposals as live-work conversions, internal unit conversions, or alterations to existing buildings.

Section 28 (5) is intended to limit the areas in which regulations may be approved to: shorelines, river or stream valleys, hazardous lands and wetlands; however, a further concern arises as a result of the broad catch-all of "other areas" as contained in sub-section 28 (5) (e) of the proposed new Act.

"The minister shall not approve a regulation made under clause (1) (c) [see above] unless the regulation applies only to areas that are: ..... or

(e) other areas where in the opinion of the Minister, development should be prohibited or regulated or should require the permission of the authority."

In combination, a conservation authority's expanded regulatory role under the meaning of "development", the expansion of areas in which "development" is regulated from flood plains to include valley sides, the added vagueness of the "other areas" in which conservation authority approval of development may come to be regulated, and the change of concern respecting "pollution or the conservation of land" from fill-related issues to all issues associated with a development, is of considerable concern.

The consequence of the above-noted changes, when taken together, could result in:

(1)duplication of development approval functions between conservation authorities and municipal planning authorities; and

(2)potential conflicts of opinions between conservation authority and municipal planning authority.

To the extent that duplication exists, it is compounded by the lack of a common appeal and resolution process. It is likely that a body charged with balancing many interests (i.e., a municipal planning authority) may, from time to time, arrive at a different conclusion in respect to a development than a body charged with addressing a smaller set of interests. The potential for a municipality to approve a development but for a conservation authority to refuse it, or vice versa, is apparent. Appropriate resolution of such differences will be difficult given that a development proponent can only appeal a municipality's decision to the Ontario Municipal Board (OMB) and can only appeal a conservation authority's decision via the Minister of Natural Resources to the Mining and Land Commissioners Board.

Outline of Proposed Solution:

The proposed solution arrived at, in consultation with TRCA staff, has two parts.

The first is to suggest the deletion in full of the most troublesome aspects of the definition of "development", specifically the clause that duplicates community planning functions in regard to changes to existing buildings [s.28(20)(b)], and to delete the "catch-all" clause that sets no limit on the area over which a conservation authority could, through regulation, come to have approval authority [s.28(5)(e)].

The second part of the proposed solution, is to suggest that the remaining problems of duplication concerning the use of the term "development", as defined in s.28(20), be subsequently addressed by:

(a)resolving these concerns, in consultation with the TRCA and the Province, and clarifying details of the appropriate regulatory powers of conservation authorities either in a supporting generic regulation or a TRCA specific regulation; and

(b)jointly resolving any outstanding concerns through agreements between the City and the TRCA.

Conclusions:

It is recommended that the proposed changes to the Conservation Authorities Act that (i) expand the matters that may be regulated, expand the areas that may be regulated, and expand the powers that may be employed within such areas; (ii) which collectively cause concern for duplication and overlap with planning authority functions; and (iii) create potential conflict without adequate appeal mechanisms for developers or municipalities, be addressed by the Province deleting the most troublesome clauses now, and by the Province subsequently initiating consensual discussion toward a more appropriate conclusion that does not add to red tape problems.

I also recommend that I be authorized to continue discussion with the Toronto and Region Conservation Authority to develop a mutually satisfactory understanding of our respective roles and responsibilities in the areas of natural hazard and natural heritage policies and practices.

Contact Name:

Mr. Christopher Morgan, 392-0408, Fax: 392-0071.