In order to divide land that you own into smaller lots, official approval is required from the local municipality. Landowners must ensure that the land severance has no long-term negative impact on the community, otherwise, municipal services such as garbage collection, snow plowing, and school bus routes could quickly become over-extended. Alternatively, the severance could result in damage to the natural environment if the lots are too small to accommodate adequate sewage disposal systems. Consideration is given to neighbours that could be negatively affected and the severance could conflict with the planning goals and policies of the community.
How Land Severance is Defined
The severance of land is also known as a subdivision of land. It is defined as the authorized separation of a piece of land to form a new lot or a new parcel of land. The authorization or legal basis to do this is referred to as ‘consent’ in the legislation. This official approval is granted by local governments in order to ensure that land severances are considered within an established community planning framework.
Applying for Land Severance
The application process is time-consuming and generally involves the following steps:
Early Consultation
The applicant should first consult with its municipality or consent-granting authority and explain the proposal upfront. The purpose of this consultation is to obtain preliminary comments from the approval authority and discuss items such as:
- the need for a consent and the type of consent involved;
- whether or not a minor variance application or rezoning application will be required in conjunction with the severance;
- whether servicing requirements or land dedications will be required as part of the consent proposal; or
- whether the proposal is beyond the scope of the consent process.
Complete the Application
A complete Application for Consent must be filled out and submitted to the local consent-granting authority with processing fees included. In most cases, supporting material such as sketches or plans of the existing property and proposed severance, including dimensions of the proposed lots, will need to be included in the application package.
Circulation of the Application
After the application has been received, it will be reviewed for conformity by the local consent-granting authority. If everything is in order, the local consent-granting authority will then send notice of the application to every person assessed within a certain distance of the subject property, and to every person and public body that has provided a written request for such notice. The application will also be circulated to certain prescribed agencies for the purpose of obtaining written comments and/or advice for consideration when making the decision on the application.
Decision Process
After expiry of the period for public submissions (typically 20 days), the local consent-granting authority will schedule a notice of public hearing to make a decision on the application. A notice will be mailed to the applicant advising of the date and place of this hearing. Applicants are encouraged to attend the hearing (whether in-person or through their agents) as the hearing can otherwise proceed in their absence.
In considering an application for land severance, the consent-granting authority will evaluate the merits of the proposal based on criteria in the Planning Act, R.S.O. 1990. Some of the considerations are:
- effect of development of the proposed subdivision on matters of provincial interest;
- prematurity or if the proposed subdivision is in the public interest;
- conformity with the official plan and compatibility with adjacent uses of land;
- suitability of the land for the proposed purpose, including the size and shape of the lot(s) to be created;
- restrictions or proposed restrictions, if any, on the land proposed to be subdivided or the buildings and structures proposed to be erected on it and the restrictions, if any, on adjoining land; and
- adequacy of vehicular access, water supply, sewage disposal, and school sites.
After hearing all evidence, it is the practice of most consent-granting authorities to make an oral decision to approve (with or without conditions), deny, or defer a provisional consent to the application.
Notice of Decision
Within 15 days of the date on which the consent-granting authority makes a decision, a copy of the decision will be mailed to the applicant and to anyone so entitled to receive a copy under the regulations.
Binding Decision
If no appeal is made by the end of the 20-day appeal period, the decision is final and binding. An application can then proceed to fulfill the conditions of the severance (if any) and prepare and submit the appropriate documentation to the local consent-granting authority.
When a Land Severance Application is Approved
Land severance can be approved with conditions attached to it, such as the requirement for road widening, parkland dedication or rezoning (or a minor variance) to allow a new land use. Any conditions stipulated must be met within one year and only once all the conditions have been met, is a certificate issued by the authority. The severance is registered in the land registry office, which gives it effect. Then, the new land parcels may be sold or resold without further approval. In some cases, there is a stipulation granted to the consent that any further severance cannot occur without further approval.
When a Land Severance Application is Refused
If the application fails to provide the information or material prescribed by the Act’s regulations or the requirements of the municipal official plan it could be declined. If the consent-granting authority confirms that an application is refused, you may make an appeal to the Ontario Municipal Board or a Local Appeal Body (if established by the municipality) for a final determination of the matter. Appeals must be filed with the consent-granting authority within the specified time limits, accompanied by reasons for the appeal and the required processing fee. An appeal can be dismissed in certain circumstances without a hearing being held.
How Long Does the Process Take?
Typically, it takes approximately 2 to 3 months from the time an application is submitted to the consent-granting authority to the point where a decision is final and binding.
How an Experienced Real Estate Lawyer Can Help
Legal advice is recommended to ensure compliance with the legislation and to ensure that you receive approval for your severance. Our team of real estate lawyers can help you determine if severance approval is likely, and how to apply for your land severance. If you have any questions about land severance, or wish to begin the application process, contact the Real Estate Law team at Merovitz Potechin LLP to book a consultation.
