When engaging in commercial real estate transactions or development projects in Ontario, one often encounters the concepts of land severances and minor variances. These planning tools, governed primarily by the Planning Act, enable property owners and developers to make changes to their land or its use in ways that may deviate from existing municipal zoning or lot configuration requirements. Understanding how these processes work is essential for anyone involved in real estate investment, construction, or land development.
The Planning Act and Its Role in Local Land Use Decisions
Ontario’s Planning Act provides the legislative framework for land use planning across the province. It sets out rules for official plans, zoning bylaws, subdivision control, and the mechanisms for modifying land use designations. Land severances and minor variances are commonly used planning tools within this framework. These allow landowners to divide properties or seek relief from zoning provisions, respectively, subject to oversight and approval by local committees and planning authorities.
What Is a Land Severance?
A land severance (or a “consent to sever”) involves splitting a parcel of land into two or more distinct lots. Severances are required whenever a portion of land is to be sold, transferred, or mortgaged separately from the rest of the property, unless the land is part of an approved plan of subdivision. In commercial contexts, severances are often used to facilitate development projects, create new commercial lots, or adjust property boundaries between adjacent lots.
Applying for a severance involves filing an application with the local municipality or upper-tier municipality (depending on jurisdiction). In most cases, the application is reviewed and decided upon by a Committee of Adjustment or a Land Division Committee. Applicants are expected to provide detailed site plans, surveys, and a rationale for the severance, along with evidence of how the proposal aligns with local planning policies and the Provincial Policy Statement. The Provincial Policy Statement, last updated in 2024, governs the land use rules for Ontario.
Criteria for Granting a Severance
When reviewing a severance application, the decision-making body will consider several criteria. These typically include the conformity of the proposed severance with the local official plan, the suitability of the land for the intended use, whether the severed and retained lots have appropriate access and servicing, and whether the proposal creates any adverse impacts on surrounding land uses. The committee may impose conditions on the approval, such as road widening dedications, easements, or agreements to ensure the provision of municipal services.
It is important to note that severance applications can be denied if they conflict with broader planning objectives. Appealing such a decision is possible through the Ontario Land Tribunal (OLT), although this can be a time-consuming and costly process.
What Is a Minor Variance?
A minor variance is a form of zoning relief that allows a property owner to deviate from specific requirements of the zoning bylaw. Common examples include requests to reduce minimum setback distances, increase building height, or allow a use not otherwise permitted on the property. In commercial real estate, minor variances may be sought to enable building expansions, accommodate signage, or respond to irregular lot shapes or existing structures.
Applications for a minor variance are submitted to the Committee of Adjustment, which evaluates the proposal against four statutory tests set out in Section 45(1) of the Planning Act. These tests require that the variance:
- Maintains the general intent and purpose of the official plan;
- Maintains the general intent and purpose of the zoning bylaw;
- Is desirable for the appropriate development or use of the land; and
- Is minor in nature.
The Minor Variance Process
The process typically begins with pre-consultation with planning staff and is followed by the formal submission of the application. A public notice is issued to nearby property owners, and a public hearing is held to consider feedback and determine whether the variance should be approved. In many cases, planning staff will prepare a report recommending approval or denial, and the Committee of Adjustment will rely on this report as part of its decision-making.
Applicants should be prepared to explain why the variance is necessary, how it meets the standard required under the Planning Act, and what measures have been taken to mitigate any potential negative impacts. While the word “minor” may suggest leniency, committees often interpret this term strictly, especially in cases where the variance would result in substantial changes to the built form or site layout.
Conditions, Appeals, and Compliance
Both severance and minor variance approvals may come with conditions that must be fulfilled before the decision becomes final and binding. These might include registering a reference plan, entering into site plan agreements, or addressing environmental concerns. Failure to meet these conditions within the prescribed time can result in the lapse of the approval.
Decisions of the Committee of Adjustment or Land Division Committee can be appealed to the Ontario Land Tribunal. Appeals must be filed within 20 days of the decision being issued and will trigger a more formal adjudicative process that can involve expert witnesses and cross-examination.
Compliance with the terms of an approval is crucial. Building without necessary variances or proceeding with a severance before satisfying conditions can result in enforcement action, including fines or orders to remove non-compliant structures.
Strategic Considerations for Commercial Property Owners and Developers
For commercial property owners and developers, navigating the severance and variance processes effectively requires a clear understanding of municipal planning goals, good working relationships with local planning staff, and detailed preparation of application materials. Engaging a qualified commercial real estate lawyer and planning consultants early in the process can significantly increase the likelihood of success.
In complex projects, it is also prudent to consider whether alternative planning tools, such as rezoning or site plan approval, may be more appropriate. These processes may offer broader flexibility but also involve more extensive review and longer timelines.
Land severances and minor variances are powerful tools in Ontario’s planning system, enabling property owners to unlock new value, adapt to changing needs, and move forward with strategic real estate projects. However, these tools come with procedural requirements, legal standards, and potential risks that should not be underestimated.
Contact Baker & Company for Innovative Commercial Real Estate Services in Toronto
The skilled commercial real estate lawyers at Baker & Company help property owners and developers achieve their land use goals confidently while complying with Ontario’s ever-changing land use rules and regulations. We have extensive experience with residential and commercial construction contracts, commercial leasing, and public sector and mixed-use developments. Our work includes projects such as hotels, residential and commercial condominiums, office towers, shopping centres, industrial facilities, and development properties. To book a consultation on your commercial real estate matter, please call 416-777-0100 or contact us online.
