LAND USE PLANNING
I. Introduction
1. Introduction
· governments like to plan in advance;àthe province must decide how much say it wants in the matter (major roads are connected to highways, etc.)
· tax influences urban form (lot levies paid by developers as part of an approval requirement)
· private law also plays an influencing role (nuisance, contractual servitudes & building schemes). Disadvantages: tend to perpetual duration, not very flexible with change, difficult to enforce, balancing of public & private interests is difficult. Advantages: the parties CAN set & control their own rules and not subject to the whims of governments, individuals can enforce them (don’t have to depend on municipalities, which have discretion).
· HERE: looking at public law decisions relating to use & activities on land, focusing on how to dissuade or regulate how private individuals use land (public control of private land). Also, expropriation (moving private land to public for usage as a park, hospital, etc.) raises questions such as compensation and to what extent a municipality can make land cheaper to acquire through zoning changes.
Public
Federal
Provincial
Land
Private
Incentives
Dissuasion
2. Constitutional Framework
Division of Powers
· federal government & its agencies [National Capital Commission]
· provincial governments & their agencies [Ontario Municipal Board, Commission de protection du territoire agricole du Québec.]
· regional governments [Montreal Urban Community, Regional Municipality of Ottawa-Carleton]
· municipal government [City of Montreal, City of Ottawa]
Federal Government
Federal Agencies
Provincial Government
Provincial Agencies
[OMB, CPTAQ]
Local Governments
Regional Municipal
[MUC] [Sutton]
· 2 constitutionally recognized governments: federal & provincial. Each can set up agencies to do things. [Municipalities draw their authority from provincial legislation & NOT the constitution.]
· Constitution Act 1867, s. 92(8)àMunicipal Institutions in the Province [authority to set up institutions & procedure]. Any functions that they do must be authorized under another power.
· Constitution Act 1867, ss. 92(13)&(16)àProperty & Civil Rights in the Province; Generally all Matters of a merely local or private Nature in the Province [principle sources of land use planning].
· by & large, land use is a provincial concern, but activities can raise issues of movement into federal
jurisdiction. The mun
aws, and the use & development of the land by the Commissioners within the limits of the Hamilton harbour, and the claim of the Commissioners for a declaration that the by-laws…are ultra vires, is dismissed.”
Glenn: there was dual aspect. We must take the subject & give it a general label/classification. Where in ss.91 & 92 does it fit? If there were a conflict here, it would be resolved by paramountcy.
Jurisdiction of Administrative Tribunals
· s.96 gives the feds the authority to appoint judges to most important courts. This has been interpreted to have a CONTENT aspect. Implicit therefore is the idea that these courts must continue to have an important area of jurisdiction [provincial governments cannot set up their own judicial bodies & give to them “s.96 functions”] This is important to land use with things like residential tenancy boards, etc.àeven if it is administratively efficient to set up boards to decide everything related to its area of expertise, you CANNOT.
from Residential Tenancies, there is a 3-step process to determining the validity of a particular provincial scheme for investing administrative bodies with “judicial functions”: (i.) historical inquiry; (ii.) is it a judicial function?; (iii.) review the tribunal’s function as a whole.
