On May 4, 2021, the Ontario Ministry of Environment, Conservation and Parks (the “MECP“) opened a sixty-day consultation period for the Land Use Compatibility Directive (the”Guideline“). The guideline replaces and consolidates a number of existing MECP guidelines that are in place and on which planning authorities have relied for decades, including the former D-1 guideline on land use and management. compatibility.

Intended to support the implementation by planning authorities of the land use compatibility policies set out in the Provincial Policy Statement 2020 (the “PPS‘) And related provincial policy under the Town planning law,[1] the new guideline will be of interest to owners and operators of “large installations”[2] (ie industrial uses) as well as developers seeking to develop major facilities or properties with “sensitive land uses”[3] (i.e. residential and institutional uses).

The guideline will apply when an approval under the Land use planning law is necessary for a proposed new or expanding sensitive land use near an existing or planned major facility (and vice versa) in order to achieve and maintain land use compatibility between those major facilities and the uses sensitive lands. There are three parts to the guideline:

• Part a: creates a guiding hierarchy for land use compatibility as a framework for decision making;
• Part b: Establishes tools to assess compatibility of land use; and
• Part c: Provides information on how planning authorities can integrate land use compatibility policies and approaches into existing tools and approvals under the Land use planning law and other laws.

This bulletin discusses the three parts of the guideline and how it will be used in the development planning process in Ontario in the future, if approved.

Part A: Overview and Policy Context

Part A of the guideline establishes the following land use compatibility objectives:

1. Protect designated employment areas for future major facilities from incompatible uses and encroachment by sensitive land uses;
2. Protect existing or planned major facilities against the potential impacts of new sensitive land uses; and
3. Prevent negative effects on sensitive existing or planned land uses of large new and / or expanding facilities.

Regarding the land use compatibility hierarchy, the guideline creates the following decision-making framework:

1. Avoid incompatible land uses, in particular by locating sensitive land uses outside the area of ​​influence (“area of ​​interest”) Large installations;
2. Where it is not possible to avoid by locating a sensitive use outside the site of interest of a major facility, assess the impacts by undertaking compatibility studies to examine the impact and magnitude of the impacts. negative effects to determine a specific separation distance for the proposal in question that would avoid negative effects;
3. When the separation distance is not possible, identify through the compatibility study mitigation measures to ensure that no negative effects will remain after mitigation; and
4. Where it is not possible to avoid and minimize / mitigate impacts, do not allow the proposed incompatible land use.

The guideline does not apply to existing incompatible uses for which no Planning Act approval is triggered[4] or activities associated with major facilities that do not require land use approval under the Land use planning law.[5]

Part A also examines the roles and responsibilities of planning authorities, developers and other government authorities when considering and assessing land use compatibility, including political considerations.

Part B: Assessment of compatibility with land use

Part B of the guideline establishes an approach to assess land use compatibility in order to inform land use planning decisions. The approach focuses on identifying the area of ​​interest for major facilities and creating minimum separation distances (“MSD“). An area of ​​interest is the area surrounding the property lines of an existing or planned major facility where adverse effects to surrounding sensitive land uses are moderately likely to occur. An MSD is the recommended minimum separation distance which is smaller than the AOI and is the distance within which adverse effects and compatibility issues are most likely to occur.

Table 1 of the guideline establishes areas of interest and ASDs for certain categories of major facilities. The AOI and MSD stipulated for a major installation can only be changed for major installations or specific use areas when justified by supporting studies in accordance with the Guideline. The guideline also provides instructions on how to classify a major installation not listed in Table 1 and determine the corresponding AOI and MSD based on the applicable class (i.e. classes 1 through 5) and how the ‘AOI and MSD should be measured.

Building on the decision-making framework established in Part A, Part B of the guideline provides for the conduct of compatibility studies when a proposed development will be located in the established area of ​​interest or MSD, including details technical components and documentation that should be part of such a study.

In addition to compatibility studies, the guideline requires that sensitive land use proponents provide a “demonstration of need” when:

• a new sensitive land use is proposed in the area of ​​interest of a major facility and mitigation measures would be required to ensure the absence of negative effects or potential impacts; or
• a new sensitive land use is proposed as part of the MDD of a major facility (whether or not mitigation measures are deemed necessary).

A demonstration of need is an assessment that determines whether there is an identified need for the proposed use in the proposed location and evaluates alternative locations for the proposed use if avoidance is not possible.[6]

Planning authorities are encouraged not to approve the development of a sensitive use unless “they are satisfied that there is an identified need and a strong planning rationale for the proposed use at that location, and that alternative locations or areas for the proposed use have been assessed and there are no reasonable alternative locations or areas ”.[7] The Guideline therefore imposes on promoters of developments with sensitive uses the burden of justifying their proximity to existing major installations.

Finally, in accordance with the decision-making framework established in part A, part B of the guideline considers various options for mitigating potential negative impacts, in particular:

• Source mitigation: mitigation used in a major facility to reduce the negative effects of its operation;[8]
• Operational mitigation: a type of source mitigation that involves modifications to the existing operations of a major facility to reduce negative effects;[9]
• Buffers: a mitigation measure involves the use of a barrier to prevent or minimize the negative effects of incompatible land uses;[11] and
• Staging: Staggering or sequencing of development can help mitigate negative effects between users.[12]

Mitigation metrics are case specific and must be properly designed to ensure normal operation of the two incompatible land uses without conflict.[13]

Part C: Integrating Land Use Compatibility into Planning Tools

Part C of the guideline examines the various planning tools under the Planning Act and provides advice on how these tools can be used by planning authorities to ensure compatibility of land use. Recommendations include:

• Establish clear Official Plan policies to protect major facilities and prohibit sensitive land uses adjacent to existing major facilities if adverse effects cannot be mitigated;
• Use of zoning by-laws to impose property-specific zoning to require in-place buffer zones (or other mitigation measures) identified by a compatibility study;
• Use of bylaws to suspend development until compatibility and mitigation studies (if required) are completed;
• Use of conditions on site plan approval to require mitigation measures (e.g., noise reduction walls, improved fencing for amenity areas, berms, improved landscaping, and triple-glazed windows );
• Require the completion of a compatibility study (when necessary in accordance with this guideline) as part of a complete application for approval of a plan of subdivision or approval of co-ownership; and
• Use of conditions of approval for departures / consents to require mitigation measures that can be recorded on the title.

Closing comments

In summary, the guideline establishes amended policies that will affect land use planning policy and the assessment of all planning applications involving land use compatibility issues between major facilities and uses. sensitive land. Since the old superseded guidelines were last updated in 1995, it is reasonable to expect that once approved, the new guideline will be with us for some time.

Sponsors are therefore encouraged to review the new guideline and submit their comments to the MECP. The sixty-day consultation period ends on July 3, 2021 at 11:59 p.m. and interested parties can comment here.