The OMB is Replaced by the Local Planning Appeal Tribunal (LPAT)

By Don Kerr

The Ontario Municipal Board (OMB) was replaced by the Local Planning Appeal Tribunal (LPAT) on April 3, 2018. Much remains the same as before, but some changes have been made which should be helpful. A stated intention of the Act is to reduce the number of appeals. However, it is not clear to what extent this will happen. In addition, the new Act is to provide more control to municipalities, but it is not yet clear how much control has been transferred, especially for lower tier municipalities like Collingwood and The Blue Mountains. However, it seems that the ability of LPAT to overturn a municipal decision is reduced. There are new provisions for written hearings and for oral hearings, but the impact of these revisions is not yet clear.

We hoped that the new Act would make it clearer that municipalities should go beyond the Provincial Policy Statement (PPS) where they believe more protection of natural heritage is warranted. The current act allows this but, based on real-life experience with the OMB, our local municipality feels the PPS has always taken precedence over the Official Plan thus resulting in wasted expenditures if appealed. It is not clear that LPAT will be any different.

The LPAT process allows for more than one hearing officer but we have not yet seen any criteria for the degree of complexity that would warrant more than one officer. In the new law, mediation under LPAT is mandatory; however, this has been done in many previous OMB cases. The appellant must provide a full explanation of (in)consistency with provincial policies. LPAT may send the appeal back to the municipality for reconsideration if the application conforms to all policies.

The new Act creates a Local Planning Appeal Support Centre. Until regulations are released, we don’t know if this includes free legal support and/or financial support or what the criteria are for support.

The OMB Procedural Rules have been revised temporarily for LPAT. They still do not explicitly allow a status between Party (excessive cost) and Participant (powerlessness). We have occasionally been successful in requesting a Special Participant status allowing us to present an environmental expert; however, it is subject to agreement by all Parties and the hearing officer. We will ask for this provision to be included in the next revision.

There is a section in the revised Procedural Rules regarding the obligations of an expert witness to be unbiased. This has been OMB policy for a few years; however, we did not see any substantial change when it became policy. In environmental matters, there is much room for opinion and judgment re harm to the ecosystem. We believe the solution is to require the initial assessment to be done by an independent expert such as a Conservation Authority.