Decision summary: PL180741

Issue:

The core issue in this motion was whether the Local Planning Appeal Tribunal (LPAT) could grant party status to an applicant prior to a mandatory Case Management Conference (CMC), where the municipality had approved the application.

Facts:

The applicant had applied for zoning by-law and official plan amendments to redevelop a surface parking lot with an office development. Upon the municipalities passing/approving the two planning applications, LPASC was approached by and supported two residents who appealed both the official plan amendment (OPA) and the zoning by-law amendment (ZBA) decisions.
The applicant requested party status in advance of a CMC. In response, the Tribunal initiated a motion under sections 11 and 12 of the Local Planning Appeal Tribunal Act, (LPATA) and Rule 10.11 of the LPAT Rules.

Law:

Pursuant to section 39 of LPATA, a mandatory CMC is held before a hearing to address procedural matters including identifying parties to a proceeding other than the appellant, the municipality or approval authority, who receive party status automatically.
Under section 40 of the LPATA, those who wish to participate in a s. 38(1) appeal, other than the appellant, the municipality or approval authority whose decision or non-decision is under appeal, must provide a written submission to address consistency and conformity issues at least 30 days before a CMC.

Arguments:

The applicant argued that it has a special role in the appeals and should be granted party status forthwith to enable it to bring motions to dismiss or other preliminary motions. The applicant made additional arguments that granting it party status early would enable efficiency and fairness to the proceedings.

The City and the Region agreed with the applicant’s position. The City added to the applicant’s procedural fairness and efficiency argument in noting the new process puts more emphasis on the municipality defending its decision on the application, and these costs and resources are not currently considered.

LPASC represented the appellants in submitting the position that the applicant has no special status in the appeals under the new legislation and rules. Granting the applicant party status prior to a CMC could prejudice parties who, in accordance with the LPATA, are expecting to seek status at the CMC. Granting the applicant status early for the sole purpose of hearing the applicant’s motions to dismiss and other preliminary motions prior to a CMC is unfair for the potential parties and disregards the mandatory requirements of the Tribunal’s processes and procedures.

Findings:

In a decision dated December 14th, LPAT members denied the applicant’s request for party status prior to a CMC.

Para. 25 – …while the Tribunal appreciates the special role of an applicant under the Planning Act, an applicant is treated the same as all potential parties under the LPATA and must answer to how its participation will ultimately assist the Tribunal…
Para. 26 – …An applicant wishing to request party status must follow the process set out in LPATA, and it will be for the panel presiding over the mandatory CMC to determine, whether it will grant the request…
Para. 29 – …to allow an early motion to dismiss from an applicant who has been granted party status for the purpose of bringing such a motion ignores the benefit derived by the Tribunal in reviewing a complete record of the appeal…
Para 31 – From a fairness and efficiency standpoint, the Tribunal finds the appropriate approach is to deal with such questions (party status requests and preliminary motions) in one forum in a consistent manner, and that is at the CMC, when the Tribunal has a complete record and has determined all parties to the appeal(s).

LPASC Commentary:

Conclusion 1 – Applicants who are not appellants need to apply for party status at the CMC

While the Tribunal may have jurisdiction to exempt matters from its Rules to ensure a just, expeditious, and cost-effective determination of the matter before it, it has no jurisdiction to exempt matters from legislative requirements. The rules regarding status applies to all persons, including the applicant, otherwise, there would be a significant disadvantage to any other potential party.

Conclusion 2 – A complete record of the appeal is crucial

Prior to determining party status requests or other preliminary motions, the Tribunal emphasized the importance of having a complete record, which includes the appeal records, responding appeal records, case synopses from the appellant(s), municipality and/or approval authority. Only with the complete record, is the Tribunal able to effectively evaluate who should receive party status and if, or when, motions should be heard.

Conclusion 3 – A municipality must be prepared to support its decision.

The City identified that they did not contemplate the cost and resources required to defend a decision under the new legislative process. Municipalities have been empowered to make decisions which are consistent and conform with local and provincial policies. Consideration of this role should be reflected in their due diligence before a decision, and possibly in the consideration of the planning application fee schedules.

LPAT Decision PL180741