Topic 4

Six Property Rights in Common Law in Canada

  1. Right of possession

  2. Right to exclude others

  3. Right of disposition

  4. Right of using

  5. Right of enjoying the fruits and profits of land

  6. Right of destroying or injuring property


In Quebec the Code Civile du Québec identifies ownership as the purest form of real right. The three attributes of ownership are (same 6 rights just rewritten)

  1. The right to use

  2. The right to enjoy the fruits

  3. The right to dispose


Qualifications to property rights are in the public interest (restrictions)

  • Community and individual health

  • Safety

  • Morality

  • General welfare

This attempts to protect the interest of neighbours and the community


The primary legislative power to constrain property rights is within provincial jurisdiction and include Acts that

  • Empower municipalities to govern

  • Empower municipalities to determine land uses within their boundaries

  • Establish the process for registering ownership and charges

  • Establish the nature of rights and obligations of commercial and residential tenancies

  • Establish the process for determining local property taxation


Entitlements

  • The rights to use and to develop property are commonly referred to as entitlements and include approvals, granted by all levels of government necessary for the development of the project


Entitlements Address

  • Land use

  • Environmental concerns

  • Design issues

  • Zoning

  • Conditions of approval

  • Other regulations


Planning


Planning is a technical and political process concerned with

  • The welfare of the people

  • Control and use of land

  • Design of the urban environment

  • Management of growth through development

  • Transportation

  • Communication

  • Protection and enhancement of the natural environment


Planning deals with societal issues such as

  • What type of urban environment do we want to live, work and play in?

  • How do we encourage social integration and interaction?

  • What should we do to preserve the natural environment?

  • How should we best enable the movement of people and goods?

  • What are the best solutions to poverty and human disability in our community?

  • How do we structure government services to best serve society?


There are two primary components of planning oversight in Canada

  • Professional planners

    • Plan and organize development and infrastructure using sound planning principles

    • The Canadian Institute of Planners oversees the planning profession in Canada

  • Elected representatives

    • Represent the wishes of their constituents

      • Desire for re-election

    • Reinforces the need for community acceptance of a project


Provincial legislation contains the requirement for an Official Plan (also called Master plan, Comprehensive Plan, General Plan, Strategic Plan, Integrated Plan) at the municipal level

  • Zoning bylaws and infrastructure plans are aligned with the official plan

  • Changes to the plan often involve public consultation

    • Can be a source of opposition to development

    • Effective developers constantly monitor changes in official plan designations applicable to their project, adjacent properties or competitive properties


Zoning


Zoning Bylaws are used to put the Official Plan into effect, They determine:

  • Land use

  • Building locations

  • Building types

  • Permitted uses

  • Lot sizes

  • Parking requirements

  • Heights

  • Setbacks

  • Etc.


Zoning Amendments

  • Property owners can petition for a zoning amendment to change a zoning bylaw

  • For example, a site may have been zoned for single-family detached houses, but the property owner wants to demolish the houses and build an apartment building.

  • Determined by the planning authority, keeping in mind their guiding principles and official plan


Development Approval Process


Stage 1: Inquiry

  • Study the Property and neighbourhood

  • Verify Existing Zoning

  • Consult Official Plan


Stage 2: Pre-Application

  • Meet with planning staff

  • Meet with local councilor

  • Present preliminary concept

  • Identify potential areas of friction

  • Gauge acceptability

  • Make adjustments


Stage 3: Application Submission

  • Formal submission of project and zoning amendment request

  • Application includes details of property and structure

  • Proposal should explain alignment of project with municipal planning


Stage 4: Application Review

  • Application circulated to relevant departments and outside agencies

  • Developer may be requested to provide additional information

  • Developer should try to obtain feedback throughout the review process


Stage 5: Public Consultation

  • Notice of rezoning posted at site and circulated

  • Public consultation meetings with developer and municipal planners present


Stage 6: Report to Council

  • Adjustment to proposal if required before final report issued to council

  • Report with comment from city departments, outside agencies and public

  • Recommendation on approval


Stage 7: Development Approval

  • Municipal council vote on application

  • Can be approved with conditions


Stage 8: Site Plan Submission and Approval

  • More detailed set of plans submitted for municipal review

  • More technical in nature with no public input


Stage 9: Building Permit Submission and Approval

  • Building permit issued by municipality


Development Charges and Levies

  • Development Charges for additional infrastructure

  • Parks Levies

  • Density Bonusing

Municipalities will often levy charges for development


Public Outreach


Change is often opposed by communities because it threatens to disrupt daily life:

  • a new project will alter the visual landscape

  • it will bring new people into the community

  • It will increase traffic

  • daily habits will be affected


When change occurs rapidly, a gap may emerge between the interests of community and the interests of the developer

  • This will increase entitlement risk as the community will attempt to influence the municipal decisions


  • Public Outreach is the process of engaging with the local community, listening and responding to its concerns in order to build support for the project

  • The primary responsibility of the project representative is to listen, understand the possible impact of her proposal and take specific actions


The goal of the outreach program is to:

  • build support for the project

  • Reduce entitlement risk

  • identify supporters

  • neutralize potential opposition.

The message should allay fears about the impact of the project on the community and communicate its potential benefits


Information Gathering *not that important

  • There are many ways to gather information about the political climate and community attitudes toward a proposed project

    • Surveys

    • Informational meetings

    • Charrettes


Disseminating Information

  • It is important that the proposed project is accurately portrayed to the community.

  • Direct communication from the developer prevents the public from learning of the development from secondhand sources that often spawn rumors and misinformation