Planning

Section 45 Planning Act Current to June 1, 1996 (Bill 20)

Unofficial Consolidation by Robert J. Miller

Powers of committee; general

45.--(1) The committee of adjustment, upon the application of the owner of any land, building or structure affected by any by-law that is passed under section 34 or 38, or a predecessor of such sections, or any person authorized in writing by the owner, may, despite any other Act, authorize such minor variance from the provisions of the by-law, in respect of the land, building or structure or the use thereof, as in its opinion is desirable for the appropriate development or use of the land, building or structure, if in the opinion of the committee the general intent and purpose of the by-law and of the official plan, if any, are maintained.

special

(2) In addition to its powers under subsection (1), the committee, upon any such application,

(a) where any land, building or structure, on the day the by-law was passed, was lawfully used for a purpose prohibited by the by-law, may permit,

(i)the enlargement or extension of the building or structure, if the use that was made of the building or structure on the day the by-law was passed, or a use permitted under subclause (ii) continued until the date of the application to the committee, but no permission may be given to enlarge or extend the building or structure beyond the limits of the land owned and used in connection therewith on the day the by-law was passed, or

(ii)the use of such land, building or structure for a purpose that, in the opinion of the committee, is similar to the purpose for which it was used on the day the by-law was passed or is more compatible with the uses permitted by the by-law than the purpose for which it was used on the day the by-law was passed, if the use for a purpose prohibited by the by-law or another use for a purpose previously permitted by the committee continued until the date of the application to the committee; or

(b) where the uses of land, buildings or structures permitted in the by-law are defined in general terms, may permit the use of any land, building or structure for any purpose that, in the opinion of the committee, conforms with the uses permitted in the by-law.

Power of committee to grant minor variances

(3) A council that has constituted a committee of adjustment may by by-law empower the committee of adjustment to grant minor variances from the provisions of any by-law of the municipality that implements an official plan, or from such by-laws of the municipality as are specified and that implement an official plan, and when a committee of adjustment is so empowered subsection (1) applies with necessary modifications.

Time for hearing

(4) The hearing on any application shall be held within thirty days after the application is received by the secretary-treasurer.

Notice of hearing

(5) The committee, before hearing an application, shall in the manner and to the persons and public bodies and containing the information prescribed, give notice of the application.

Hearing

(6) The hearing of every application shall be held in public, and the committee shall hear the applicant and every other person who desires to be heard in favour of or against the application, and the committee may adjourn the hearing or reserve its decision.

Oaths

(7) The chair, or in his or her absence the acting chair, may administer oaths.

Decision

(8) No decision of the committee on an application is valid unless it is concurred in by the majority of the members of the committee that heard the application, and the decision of the committee, whether granting or refusing an application, shall be in writing and shall set out the reasons for the decision, and shall be signed by the members who concur in the decision.

Conditions in decision

(9) Any authority or permission granted by the committee under subsections (1), (2) and (3) may be for such time and subject to such terms and conditions as the committee considers advisable and as are set out in the decision.

Notice of decision

(10) The secretary-treasurer shall not later than ten days from the making of the decision send one copy of the decision, certified by him or her,

(a) to the Minister, if the Minister has notified the committee by registered mail that he or she wishes to receive a copy of all decisions of the committee;

(b) to the applicant; and

(c) to each person who appeared in person or by counsel at the hearing and who filed with the secretary-treasurer a written request for notice of the decision,

together with a notice of the last day for appealing to the Municipal Board.

Additional material

(11) Where the secretary-treasurer is required to send a copy of the decision to the Minister under subsection (10), he or she shall also send to the Minister such other information and material as may be prescribed.

Appeal to O.M.B.

(12) The applicant, the Minister or any other person or public body who has an interest in the matter may within 20 days of the making of the decision appeal to the Municipal Board against the decision of the committee by filing with the secretary-treasurer of the committee a notice of appeal setting out the objection to the decision and the reasons in support of the objection accompanied by payment to the secretary-treasurer of the fee prescribed by the Municipal Board under the Ontario Municipal Board Act as payable on an appeal from a committee of adjustment to the Board.

Idem

(13) The secretary-treasurer of a committee, upon receipt of a notice of appeal filed under subsection (12), shall forthwith forward the notice of appeal and the amount of the fee mentioned in subsection (12) to the Municipal Board by registered mail together with all papers and documents filed with the committee of adjustment relating to the matter appealed from and such other documents and papers as may be required by the Board.

Where no appeal

(14) If within such 20 days no notice of appeal is given, the decision of the committee is final and binding, and the secretary-treasurer shall notify the applicant and shall file a certified copy of the decision with the clerk of the municipality.

Where appeals withdrawn

(15) Where all appeals to the Municipal Board are withdrawn, the decision of the committee is final and binding and the secretary of the Board shall notify the secretary-treasurer of the committee who in turn shall notify the applicant and file a certified copy of the decision with the clerk of the municipality.

Hearing

(16) On an appeal to the Municipal Board, the Board shall, except as provided in subsections (15) and (17), hold a hearing of which notice shall be given to the applicant, the appellant, the secretary-treasurer of the committee and to such other persons or public bodies and in such manner as the Board may determine.

Dismissal of appeal by O.M.B.

(17) Despite the Statutory Powers Procedure Act and subsection (16), the Municipal Board may dismiss all or part of an appeal without holding a hearing, on its own motion or on the motion of any party if,

(a) it is the opinion that,

(i) the reasons set out in the notice of appeal do not disclose any apparent land use planning ground upon which the Board could allow all or part of the appeal,

(ii) the appeal is not made in good faith or is frivolous or vexatious, or

(iii)the appeal is made only for the purpose of delay;

(b) the appellant has not provided written reasons for the appeal;

(d) the appellant has not responded to a request by the Municipal Board for further information within the time specified by the Board.

(17.1) Before dismissing an appeal, the Municipal Board shall notify the appellant and give the appellant an opportunity to make representation in respect of the appeal and the Board may dismiss an appeal after holding a hearing or without holding a hearing on the motion, as it considers appropriate.

Powers of O.M.B.

(18) The Municipal Board may dismiss the appeal and may make any decision that the committee could have made on the original application. R.S.O. 1990, c. P.13, s. 45 (1-18).

Amended application

(18.1) On an appeal, the Municipal Board may make a decision on an application which has been amended from the original application if, before issuing its order, written notice is given to the persons and agencies who received notice of the original application under subsection (5) and to other persons and public bodies prescribed under that subsection.

(18.1.1) The Municipal Board is not required to give notice under subsection (18.1) if, in its opinion, the amendment to the original application is minor.

Notice of intent

(18.2) Any person or public body who receives notice under subsection (18.1) may, not later than thirty days after the day that written notice was given, notify the Board of an intention to appear at the hearing or the resumption of the hearing, as the case may be.

Order

(18.3) If, after the expiry of the time period in subsection (18.2), no notice of intent has been received, the Board may issue its order.

Hearing

(18.4) If a notice of intent is received, the Board may hold a hearing or resume the hearing on the amended application or it may issue its order without holding a hearing or resuming the hearing.

Notice of decision

(19) When the Municipal Board makes an order on an appeal, the secretary of the Board shall send a copy thereof to the applicant, the appellant and the secretary-treasurer of the committee.

Idem

(20) The secretary-treasurer shall file a copy of the order of the Municipal Board with the clerk of the municipality. R.S.O. 1990, c. P.13, s. 45 (19, 20).