Development Charges Season

Post by: Craig Robson

Many municipalities in Ontario are currently undergoing a review of their development charges bylaws for 2014 implementation.

Anyone who is involved in real estate development should be paying careful attention to these reviews.

It is not unusual for a developer to determine that provisions in a development charges bylaw are not as favourable to that developer as they could or ought to have been.  For example, a few missing words in a definition within the bylaw can defeat a right to claim certain exemptions or credits.

Now is the time to be reviewing any definitions in a proposed development charges bylaw which may affect your development and to try to have those definitions “tweaked” as necessary to accommodate the developments you may be undertaking during the life of the bylaw (usually five years).

If nothing else, you should be keeping an eye on the proposed amounts of the development charges so that if the charges are increasing you can attempt to take out any requisite building permits to fix the amount of the charges at the old rates prior to the implementation of the new rates.

In addition, if there are any capital works which your proposed development may need in order to proceed, such as for example, a road or trunk sewer, a careful review of the background study relevant to the proposed bylaw should be undertaken.

You should attempt to ensure that all necessary capital works, to the extent any of them could be considered to be “growth related”, are:

  • shown as included in the capital works to be completed within the background study relating to the new bylaw; and,
  • that such capital works are scheduled to be completed within a timeframe which will accommodate your proposed development.

Otherwise, you could be faced with the prospect of having to either delay your development or, if the municipality will allow you to do so, pay the cost of the capital works without any guarantee of reimbursement.  Even if the municipality is inclined to reimburse you for the cost of any capital works that you undertake on its behalf, there may be difficulty in completing such arrangements if the proposed capital works are not contemplated by the background study that gives rise to the final development charge amounts in the bylaw.

Schedule G Part 3: Schedule G – Municipality

Post by: Craig Robson

With respect to phased condominiums, a “Schedule G- Municipality” is required for each phase with the exception of the final phase. The legislation does not specifically exempt the last phase from having a Schedule G – Municipality but the Registry Office has accepted that because this Schedule G is speaking about future phases it makes no sense to require the Schedule on the last phase of a phased condominium.

The Initial Registration of a phased condominium is not considered a “phase” and does not require a “Schedule G- Municipality”.  There is no explanation for this omission other than it was an oversight.

The drafters of the legislation seem to have had some lapses in this part of the Act.

Regardless of the legislation’s failure to require Schedule G – Municipality for the Initial Registration of a phased condominium, it is important to be aware that knowledgeable approval authorities require engineer certification for the Initial Registration as a condition of the registration (where the issue is perhaps most likely to arise) to address the same issues noted in a Schedule G – Municipality.

The purpose of the Schedule G – Municipality is to ensure that each phase being registered is “self-sufficient” with respect to services and street access if the balance of the phases in the project do not proceed.   The legislation wants to ensure the registered phases are not cut off from required street access and services if future phases do not proceed.

The following excerpt from O. Reg. 48/01, s. 52 addresses this need for a “Schedule G- Municipality”:

 (5) The material to be added to Schedule G to the declaration is,

(a) the certificates, with respect to the land included in the phase, that subsections 5 (8) and (9) and section 6 require; and

(b) a statement from any of the municipalities in which the land included in the phase is situated, or from the Minister of Municipal Affairs and Housing if the land is not situated in a municipality, that,

(i) all facilities and services have been installed or provided as the person making the statement determines are necessary to ensure the independent operation of the corporation if no subsequent phases are created, or

(ii) a bond or other security has been posted that is sufficient to ensure the independent operation of the corporation if no subsequent phases are created. O. Reg. 48/01, s. 52 (5).

(6) The statement described in clause (5) (b) shall be signed by a person authorized to bind the municipality or the Minister making the statement. O. Reg. 48/01, s. 52 (6).

(7) For the purposes of clause 146 (11) (a) of the Act, the facilities and services covered by the bond or the security mentioned in that clause have been installed or provided when there are no facilities and services remaining to be installed or provided that the person making the statement described in clause (5) (b) determines are necessary to ensure the independent operation of the corporation if no subsequent phases are created. O. Reg. 48/01, s. 52 (7).

In our opinion, the required facilities and services in 52(5)(b)(i) above should include the obvious pipes, wires etc. for electricity, telecommunications, sanitary and storm sewers, gas (if available) and water as well as access to a municipal street/road either directly through the common elements or by way of good and sufficient easements in favour of the condominium corporation.

The Schedule G – Municipality does not have a prescribed form.

A major issue with Schedule G – Municipality is that the Condominium Act does not obligate any municipality to sign the schedule which is a consistent issue and problem with the legislation in general.  Therefore a developer of a phased condominium could be stymied in its ability to complete the phases of a phased condominium if the municipality will not cooperate.  There would appear to be nothing the developer could do about this in the absence of a prior written commitment from the municipality to provide the Schedule G at the appropriate time.   This is a serious issue.

We have found most municipalities to be cooperative in providing the schedules when needed.   However, a usual and legitimate request that is made by municipalities before they will sign Schedule G – Municipality is to have the project engineer certify:

  • that the requisite services and facilities are in place; or,
  • the costs to install the same in support of a request to permit registration to proceed on the basis of a bond or letter of credit for incomplete services and facilities.

While the legislation does not specifically address this, it is not unreasonable for the municipality to require the project lawyer to provide his or her written opinion (based on and subject to the information received from the project engineer as to location and extent of services and facilities), that following the registration of the phase in question:

  • the required services and facilities needed by the phase (including access to a municipal street/road) will either be part of or through the common elements of the condominium plan; or,
  • by way of good and sufficient easements in favour of the condominium corporation.

Hopefully, the forthcoming amendments to the Condominium Act will obligate municipalities to provide required schedules such as Schedule G – Municipality provided proper certifications and opinions are provided to the municipality or provide for certifications from the project engineers and lawyer in lieu of the municipality signing the required schedule.