|Planning Act Consents & When They Apply|
Once a Consent, Always a Consent … Maybe
The Effect on the Planning Act
IntroductionThe oft asked query of investment property purchasers or those whose adjacent properties merge whether intentionally or by inadvertence, is whether their acquisition can be divided into smaller parcels. Examination of this question commences with the obligatory consideration of the Planning Act and usually continues with an audience at the local Committee of Adjustment – the body charged with deciding whether or not to grant “consent” for land severance requests. There is a belief endorsed by most solicitors of the real estate bar that “consents” to sever parcels of land have indefinite life-spans, i.e., “once a consent, always a consent”. This article will consider the judicial mind-set towards the efficacy of “old” consents to facilitate current severances as well as possible restrictions on the use of same.
Authority of Committee of AdjustmentFor the uninitiated, the authority of a local Committee of Adjustment to grant consent for the severance of land comes from section 4 of the Planning Act. This provision affords the Minister of Municipal Affairs and Housing the ability to delegate various powers to municipal councils; the municipal councils in turn can appoint specific committees to exercise this authority granted to them by the Minister. Section 53 of the Planning Act permits a Committee of Adjustment to make decisions on applications for changes to land configuration in the form of Consents. Thus, in granting consent to an application to sever land, a Committee of Adjustment is bestowed with all the powers and limitations dictated by the Planning Act.
Case Law Regarding SeveranceSubdivision control in Ontario is guided by s. 50 of the Planning Act. For our purposes, subsections 50 (3) and (5) – which deal with subdivision control and part lot control, respectively – are of particular importance. These sections provide general prohibitions to the conveyance of land in certain circumstances while also listing a number of exceptions to such prohibitions.
Subsection 50 (12) of the Planning Act stands for the proposition that once an owner of a parcel of land receives unqualified consent to sever land that is protected by subdivision or part-lot control, no additional consent is needed to convey or otherwise deal with the identical piece of land. This section is oft cited as the “once a consent, always a consent” provision.
The authority for the maxim “once a consent, always a consent” is derived from the 1986 Ontario District Court decision in R & R Eastern Estates Ltd. v. Van Heuren. This case involved a vendor’s application under the Vendors and Purchasers Act R.S.O. 1980, c. 520, for an order that s. 50(12) of the Planning Act exempts a conveyance from the requirements of s. 50(3) and (5) of the Act.
The facts of this case stem from 1974 when “T” and “G”, the owners of the subject parcel of land, obtained unconditional consent to split the land into two parts. Part 1 was conveyed to “T” and part 2 was conveyed to “G”. In 1981, both parcels were conveyed to the applicant vendor by way of intervening conveyances; thereby causing the respective parcels to merge. In 1986, the vendor sought to sell Part 1 of the parcel without obtaining consent from the Committee of Adjustment. The District Court held that s. 49(12) of the Planning Act [now s. 50(12)], was enacted to avoid the necessity of having to repeatedly obtain consent to convey identical parcels of land for which a severance had previously been granted.
With the R & R decision came questions as to the functionality of s. 50 (12) in situations where a Consent to sever was granted before the forerunners to s. 50(12) were added to the Planning Act. Specifically, was the subsection retroactive to consents that were granted prior to 1979? This question was answered in the 1992 Ontario Court (General Division) decision Ochitwa v. Corp. of the Township of Biddulph.
The analysis of this case commences in 1969 when a land owner, “C”, was granted consent to sever a 10-acre parcel of land from his farm which he then sold to “D”. In 1977, “C” was granted a second consent to sever an additional 1.3-acre parcel of land which was also sold to “D”. Under the Planning Act, circa 1977, the 1.3-acre parcel of land automatically merged with the 10-acre parcel and further consent would be required to sever the resultant 11.3-acre parcel. The Planning Act was amended in 1979 to include a new subsection, however – the forerunner to the current s. 50(12). As explained above, this new subsection eliminated the need to acquire further consent to convey an identical piece of land that had previously been severed with consent.
In 1991, the owner of the 11.3-acre parcel applied for a declaration that he could rely on the original consent to convey the 1.3-acre parcel. Relying on R & R, the court held that s. 49 (12) [i.e. s. 50 (12)] applied to consents granted before the section was enacted.
In rendering its judgment, the court also noted that the maxim of “once a consent, always a consent” would apply even in the face of evidence that the Committee of Adjustment used inappropriate planning principles in granting the original consent. The court reasoned that not uniformly applying “once a consent, always a consent” would result in undesirable inconsistencies as prior consents would be valid in some cases but not in others. Thus, a determination as to whether proper planning principles were even followed in the original grant of consent would have no place in the enquiry according to this court.
Qualified versus Unqualified Consents & the Identical Parcel of LandIt is important to note that the above cases dealt with unqualified consents, and that the subsequent conveyances involved the identical parcel of land. Indeed, s. 50(12) is quite specific in indicating that consents to sever are valid only for the identical piece of land. If consent to sever is granted with the qualifier that it cannot be severed in the future without additional consent, the “once a consent always a consent” principle would not apply.
An Example“C” has a large parcel of land and he obtains an unqualified consent from his local Committee of Adjustment to sever a parcel. “C” subsequently sells the parcel to “D”. A few years later, “C” wishes to obtain consent to sever an additional parcel of land, abutting the original severed parcel, with the intent of selling the second parcel to “D”. This time, the Committee of Adjustment grants the consent with the qualifier that once “D” obtains the second parcel, it must merge with the first parcel. This scenario, of course, creates an adverse circumstance. The Committee of Adjustment intended for the two parcels to remain merged after the second conveyance, but “D” can choose to sever the first parcel using the original unqualified consent and the result is effectively the same: the merged parcels have been severed. As Gautreau J. noted in Ochitwa, “It must be presumed that the legislature, when passing [s.50(12)], was aware that some improper severances might slip through.”
Based on the current state of the law, it would stand to reason that qualifiers accompanying consents to sever parcels only affect and are restricted to the identical piece of land that is applied for and subsequently severed. It would therefore appear that subject to the exceptions aforedescribed the old adage is true “Once a Consent, Always a Consent”.