Many jurisdictions use zoning tools, each having set up their systems slightly differently. Whilst it is hard to speculate about how an English system would work until the results of the consultation are published, there are certainly lessons to be learned from other jurisdictions. Below, we look at the planning system in Toronto to answer some key questions about zoning that are raised by the Government's proposals. Toronto is a good example of how the tools to create a mixed zoning/policy system should be carefully employed to ensure they are able to accommodate local development needs, whilst not creating unintentional consequences. This is the first of two articles in a mini series examining the white paper through the comparative lens of the Ontario planning system, as it is manifested in the province's largest city, Toronto.
Zoning Doesn’t Necessarily Mean an Elimination of Planning Judgment
Whilst zoning is often touted as a means to eliminate planning judgment, thus streamlining the planning system, that is not always the case. Ontario, the province in which Toronto is located, has a top-down planning system with the provincial Planning Policy Statement and Growth Plan, which are analogous to the National Planning Policy Framework (NPPF). Toronto and other municipalities enact Official Plans which set out, in broad brush strokes, the acceptable uses and detailed policies to guide growth in specific areas of the city.
Below the Official Plan sits the zoning by-law. The city has also adopted design and built form guidelines. If a proposal complies with the zoning by-law, then a building permit will be issued and no planning judgment is required. However, as is set out further below, legislation creates procedural rights for landowners to apply for zoning by-law and Official Plan amendments, which require an applicant to demonstrate compliance with all higher order planning policies, therefore opening up room for planning judgment.
This planning judgment can be exercised not only at the local level, but by a third party decision maker at the Local Planning Appeals Tribunal (LPAT). A consequence of planning judgment is a re-politicisation of the system, with local councillors ultimately having a say as to which by-laws are adopted, and instructing planning officers and legal services on appeals.
Zoning Can Increase Certainty and Streamline Planning, But Not Always
Zoning systems can achieve certainty by setting parameters which (provided a development complies) generally mean that only technical matters require approval before construction can commence. However, this relies on zoning by-laws being kept up to date. As zoning by-laws in Toronto are difficult to amend on a large scale, if a by-law has not kept up with the pace of development in an area (for example, in terms of permitted heights) more applications will require zoning by-law amendments.
These applications, if approved on appeal, can establish a precedent and erode the integrity of the by-law over time. This is often the case for sites in downtown Toronto and can lead to delays in the development programme; an increased resource expenditure for all parties; and less certainty. These problems are akin to the issues facing the UK and result in an overburdening of local authorities and reduced confidence in the planning system. Whilst the Government expects that planning applications in its proposed Growth and Renewal areas would be exceptional, the experience in Toronto shows how difficult it can be to avoid planning applications and appeals without controls in place to restrict them.
Zoning Refocuses the Key Issues in Planning
Zoning in Toronto is premised on excluding different uses from different zones. Zones are also tailored to preserve the design, and to sensitively accommodate different needs like high density development downtown and lower density residential in other parts of the city.
Having such highly specific zones also means that the by-laws are prescriptive and relatively inflexible in terms of the permitted height, density, massing, and scale on a site. Whilst this can assist in creating uniformity and ensure minimal negative impacts on nearby properties, it can also restrict development, with even minor deviations from the by-law requiring approval from the city.
Use, in this type of system, can take a backseat to these other planning issues. In contrast, a planning authority in a system with broader and more flexible zones (as appear to be proposed in the planning white paper) may have to consider the trade-off on built form controls and impacts on matters such as overlooking and privacy, or how it may want to impose additional controls to effectively address those issues.
Implementation of a Zoning System Can Take a While (As Can Keeping it Up to Date)
Toronto is an amalgamation of six former municipalities which previously had 43 different zoning by-laws. In 2002, the city tried to harmonise these by-laws into one consolidated by-law for the whole city. The by-law was not adopted until 2013, and was subject to over 300 appeals. It is still not entirely in force and planning decisions relating to portions of the by-law under appeal must apply both the previous and new by-law. The fact that this by-law was largely a harmonisation exercise that did not make substantive changes to existing zones demonstrates the challenges involved in adopting a detailed blanket set of rules to govern planning.
Whilst the white paper still envisages a local plan-led system, the form and content of the local plan would be radically different: an interactive map containing rules with development management policies set at the national level. The new 30-month plan-making period is ambitious given the scale of change to be undertaken. In Toronto, keeping both zoning by-laws and policy documents up to date has proven to be a herculean task. In a jurisdiction like the UK, where local authorities already struggle to keep their local plans up to date, care should be taken to avoid the introduction of any additional layers of planning regulation which could have the unintended consequence of further burdening the system rather than streamlining it.
Improved Access to Information
Zoning improves access to planning information. Toronto (like many other cities in Canada) has created an interactive city-wide zoning map where one can click on a property and immediately understand the zoning rules and exceptions applicable to that site and those around it. Whilst it is much easier to provide and disseminate this information in a zoning system, these maps also rely on the planning authority having the capacity to upload and maintain up-to-date information at all times. The UK Government has proposed modernising software and a resource and skills strategy to equip the planning sector with the tools needed to implement its proposals, but it is not clear whether this will be enough.
Conclusion
Whilst the Toronto planning system has its merits, it also serves as a useful example of the challenges which exist in zoning systems, particularly when the system contains both policy and a zoning code. For future zoning tools in the UK to be effective and efficient, they should be carefully implemented with consideration to the capacity of the local authorities to adopt and maintain these tools and the specific development need they are intended to help resolve.
Author: Christina Achkarian, Associate
