Land Severances: Redevelopment at the Local Level

What do you do when all the land has been developed? Well…you start redeveloping.

These are the wise words of Mr. John Keyser, one of the founders of KMB Law, during my first days as an Associate. We are seeing widespread redevelopment across Ontario as property values continue to soar, demand for housing and industrial space explodes, and the buildings and infrastructure that have become staples in our city centres reach the end of their useful life. This colossal redevelopment and intensification of our urban cores is being driven by city builders, developers and governments, but also on the local level by citizens re-inventing neighbourhoods and the streetscape through micro-developments, such as infill development, construction of laneway homes, and legalizing secondary dwellings. This article focuses on land severances, one of the more accessible and transparent tools available to the public to achieve intensification.

What is a land severance?

A severance is the authorized separation or division of land into one or more parcels. Severances are approved by a municipality’s committee of adjustment through a process called a “Consent Application”. Consents are required by Ontario’s Planning Act any time a property owner wishes to permanently subdivide their land into smaller parcels, adjust their lot line, create easements over part of their land, or mortgage part of their property.

Why is municipal consent necessary to sever land?

Ontario’s Planning Act was introduced in the middle of the twentieth century to respond to the indiscriminate division and development of land in the province. This piece of legislation empowered municipal governments and councils to enact policies regulating land use through a variety of planning tools, such as site plan control, official plans, and zoning by-laws. The intention of the legislation was to balance the needs of a growing population, encourage citizen participation and allow municipalities to create long-term visions for their communities. One of these tools was the creation of an independent committee of adjustment comprising citizens appointed by municipal council to evaluate proposals for minor variances to zoning by-laws and land severances.   

Today, the Consent approval process continues to evolve to meet the pressures of a growing population in need of more and better places to live, work and play. The Consent approval process ensures that land division and development is consistent with the land use planning goals of the municipality, encourages efficient use of municipal services, regulates traffic, is sensitive to the natural and built environment, and enhances the general character of neighbourhoods.

How is a Consent Application Evaluated?

The Committee of Adjustment evaluates a Consent Application based on the following criteria:

1. Does the application conform to (i.e. not contradict) the Official Plan and other land use policies of the municipality;
2. Is the proposed severance suitable for the specific parcel of land;
3. Is there adequate municipal services and utilities to service the new lot(s); and
4. Does the application conform to (i.e. not contradict) the general objectives of the Province as described in the Provincial Policy Statements

What is the municipal process to obtain a Consent?

The process to obtain a severance in Ontario generally includes the following steps:

1. Early Consultation
   The applicant should contact the Committee of Adjustment or municipal planning staff to review their proposal and determine the preliminary feasibility of the severance.
2. Application
   The applicant must complete the Consent Application and include a sketch or survey plan showing the dimensions of the property, physical structures, distances and proposed severed and retained lands.
3. Public Notice
   Notice of the proposal is circulated in the community, including to the relevant departments in the municipality, such as the transportation department, fire department, utility companies, planning department and relevant conservation authorities. The proposal is also circulated to neighbours who are directly affected by the Consent Application.
4. Application Review
   The relevant departments in the municipality have an opportunity to provide their recommendations, comments or objections to the proposal. These recommendations are provided to the municipal planner who will issue a report and recommendations to the Committee of Adjustment evaluating the merits of the application in light of the criteria under the Planning Act and the comments received from the relevant departments and members of the public.
5. Notice of Decision
   If the municipal planner’s analysis supports granting the severance, the Planner will compile of list of conditions which must be satisfied in order for the Committee of Adjustment to provide its final approval to the application. These conditions may include such requirements as conveyance of certain lands to the municipality or utility companies for public purposes, payment of certain community costs, entering into certain agreements respecting servicing of the new lot(s), and preparation of a reference plan prepared by an Ontario Land Surveyor.
6. Public Meeting
   The Application is considered at a public meeting of the Committee of Adjustment. The Consent is either approved, approved with conditions, or refused. If the applicant disagrees with the decision or any part of it, the decision may be appealed to the Ontario Land Tribunal.
7. Effecting the Severance

   The applicant will work closely with their lawyer, planner/architect and land surveyor to satisfy all conditions of the Committee of Adjustment’s decision (also known as Provisional Consent). Once all conditions have been satisfied, the municipality will issue a Certificate of Consent that is registered on title to the new severed lot thereby creating the severed lot’s separate existence.

   The Consent Application process can take three months to a couple years to complete depending on the complexity of the proposal, size of the lot, and the specific municipality. If the applicant wishes to appeal the decision to the Ontario Land Tribunal, naturally this process can take longer.  

   The Consent approval process plays, and will continue to play, an important part in meeting Ontario’s land use planning goals, most notably intensification and redevelopment in built-up areas. Landowners should consider whether their property may be appropriate for a severance application as the process is accessible, relatively cost-efficient, and has potential to increase the value of your property and bring greater community benefits.

   If you are considering a severance, please contact your friendly neighbourhood development lawyer.