Municipal Information Network, March 12, 2012
The Ontario Municipal Board made a precedent-setting decision by approving applications for development using the integrated Municipal Class Environmental Assessment (Class EA) and Planning Act processes. Commonly referred to as the Integrated Approach, it is described in section A.2.9 of the Municipal Class EA parent document.1
The case involved the development of an 18-hole golf course and condominium residences in the Town of Aurora, which are to be serviced by a private communal well and a private communal wastewater treatment system. The project is situated on the Oak Ridges Moraine and was subject to the transitional provisions of the Oak Ridges Moraine Conservation Plan. Due to the need for private services, as well as the sensitive ecological and hydrogeological location of the project, a communal water supply, wastewater treatment plant and golf course irrigation system resulted from the collaborative effort necessitated by the Integrated Approach.
In the case of a private sector proponent, the purpose of the Integrated Approach is to synchronize the Municipal Class EA when a Schedule 'C' project is required with Planning Act processes. If a matter is appealed when this approach has been taken, then the OMB is the adjudicator of the entire process, including the Class EA. The change to the adjudicating authority—the OMB has no jurisdiction over a Class EA in the traditional approach—as well as the concurrent processes are the greatest differences between the traditional and integrated approaches to planning in Ontario.
The Aurora Case
In the Aurora case,2 the landowner submitted applications for amendment to the town's official plan and zoning by-law as well as for approval of plans of subdivision and condominium to permit an 18-hole golf course and associated residential condominium enclave. The application was opposed by a group of neighbours and by the town.
Setting aside the issues associated with the geographical and hydrogeological setting of the project because of its location on the moraine, at the core of this case was the issue of process and content using the Integrated Approach. The challenge put to the board was whether the process had been satisfactorily undertaken.
The neighbours and the town contended that the Integrated Approach was not properly undertaken because the applicant had already commissioned technical studies in a Master Environmental Servicing Plan (MESP) prior to the official initiation of the Class EA. They argued that all work was to be undertaken under the umbrella of the Class EA process and documented as such. Counsel for the town argued that the proponent had to start from scratch and examine a do nothing scenario. The applicant countered that it was entitled to rely on the fact that an official plan had been passed establishing the principle of development. The board agreed with the applicant saying that prior to the investment required to undertake and complete an Integrated Approach, baseline studies, which at a minimum demonstrate the feasibility of a project, are prudent and do not fly in the face of the process.
The applicant demonstrated to the board that although the Class EA was initiated after the MESP had begun, the MESP combined with the Planning Act applications formed the basis for the problem identification, which is Phase I of the Class EA process. The subsequent phases assessed the alternative methods for servicing the development, as well as the technologies. The focus was the private communal sewage and water servicing system that would be required to service the residential subdivision, the clubhouse and the golf course. The board opined that it is reasonable for a private sector proponent to undertake studies to determine if further investment in a project is warranted.
"The MESP served as the appropriate background study which supported [the] applications under the Planning Act, an approach that is anticipated and in fact suggested under Phase 1 of the Municipal Class EA process," the board wrote in its decision.3
The board determined the Integrated Approach had been satisfactorily undertaken.
From a legal perspective, it is important to note that the board did not technically approve the Class EA. It simply acknowledged that the proponent had "met the intent"4 of section A.2.9 of the Municipal Class EA parent document. The Planning Act applications, on the other hand, were approved by the board subject to certain conditions. The board's role was to adjudicate the matter on the basis of the correctness of the process with respect to the Class EA and not the details of a process that is already pre-approved by the Minister of the Environment.
Now that a precedent has been set with respect to the Integrated Approach, will more private sector proponents use it?
The cons of the Integrated Approach are significant in terms of up-front expenditures of money and time. When the Class EA and Planning Act applications are undertaken concurrently, the costs to a private sector applicant can be astronomical—as they were in this case. However, the applicant recognized that some efficiency can be expected when disciplines are forced to work together simultaneously rather than in a discontinuous fashion. The largest cost and greatest risk when using the Integrated Approach comes with an appeal to the OMB, as this can increase the up-front investment and provide no guarantee that the project will come to fruition. An appeal also slows down the Integrated Approach with a hearing, whereas when using the traditional approach, an appeal of the Planning Act process does not necessarily tie up the advancement of a Class EA.
On the pro side, committing to a comprehensive approach forces all disciplines to work together and can lead to an improved result and efficiencies in engineering, architecture and design. For instance, the level of design, which was to have been preliminary at the planning stage, was so advanced by the time the Aurora case was presented to the board that the detailed design effort will be significantly less than normal. Also, the collaboration among experts in the Aurora case resulted in a golf course irrigation system that was based on a combination of stormwater retention ponds as well as wastewater effluent, thereby negating the need for wellwater to irrigate the golf course. The resulting collaborative effort elevated the preferred alternative and minimized its impacts on the natural environment.
The use of the Integrated Approach enriched the outcome of the Aurora case, although the process to get to that outcome was long, gruelling and expensive. Whether the Aurora case will inspire future private sector projects remains to be seen.
1 Municipal Class Environmental Assessment, Municipal Engineers Association. October 2000, as amended in 2007. In August 2011 the Minister of the Environment approved further amendments to the A.2.9 process as described in the Municipal Class EA parent document to encourage its use.
2 O.M.B.D. No. 278, April 14, 2011. Case No. PL030997 (PL090266, PL080014, PL090257).
3 Ibid., p. 18.
4 Ibid., p. 32.
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