Brief statement of the issue

Legislation on public hearings is focused on select aspects around timing of the hearing and notice requirements. The procedures for how public hearings are conducted have largely been shaped with a view to ensuring compliance with the courts’ view of them as serving a quasi-judicial function subject to standards of procedural fairness. Criticism of public hearings has pointed to the failure of the process to create inclusive spaces for all interested persons to learn and share input. On the contrary, public hearings and their procedures are noted as being well suited to empowering a small segment of the public.

This has led to developers and local governments leading alternative forms of public engagement. However, the scope and benefit to the general public of these other forms of engagement in the current legislative framework depend upon the individuals in roles where they can lead these engagements.

Discussion of options for reform

One option to address this issue would be to amend legislation to expressly provide procedural requirements for public hearings and public engagement. A downside to this approach would be that local governments who are working collaboratively with First Nation governments to co-plan and co-develop engagement strategies could lose the flexibility to devise engagements as part of their intergovernmental relationships.

Another approach would be to amend BC’s legislation to clarify the expectations of local governments to work with First Nations as rights and title holders on co-planning, including in creating opportunities for engagement and dialogue with members of the public.

The advantage to this option is that it could help clarify for local governments some of their obligations as state governments under the UN Declaration on the Rights of Indigenous Peoples. Additionally, by allowing for flexibility in public-hearing or public-engagement procedures, the procedures can be adapted at a local level to include local Indigenous approaches to engagement and better meet the needs of the community.

This approach could be further supported by some of the options discussed elsewhere in the consultation paper. For example, if legislation were amended to require local governments to have a principles-based public-engagement policy, the legislation could further specify a requirement to co-develop the policy in consultation and cooperation with First Nations rights and title holders whose territories are impacted by the local government’s exercise of jurisdiction.

Such an amendment may need to be crafted in such a way as to ensure that local governments in working with First Nations meet First Nations where they are at and are able to find innovative and accommodating ways to do so. In terms of intergovernmental co-planning and working towards free, prior, and informed consent, BCLI heard from participants in the Reconciliation Listening Series that capacity support for First Nations is essential, as are frameworks for supporting an ongoing relationship as opposed to point-in-time information dumps and correlated requests for input on short timelines.

BCLI also heard from Reconciliation Listening Series participants of the need for these frameworks to be well supported in legislation so that they are not dependent upon the will of individuals in leadership roles.

Summary of options

•   BC legislation on local-land-use bylaws should be amended to clarify the obligations of local governments to work collaboratively with First Nations governments in developing procedures for public engagement and public hearings, where required.

•   BC legislation on local-land-use bylaws should be amended to set out procedural requirements for public hearings.

•   BC legislation on local-land-use bylaws should be amended to provide local governments with a general authorization to set the procedure for public hearings as they see appropriate.

•   BC legislation on local-land-use bylaws should not be amended to set out procedural requirements for public hearings.

To respond to this issue or to read more about issues like this one, please visit the Renovate the Public Hearing Project webpage.

The post Spotlight on renovating the public hearing: Should BC legislation on local-land-use bylaws specify procedural requirements for public engagement and public hearings? first appeared on British Columbia Law Institute.

Brief statement of the issue

BC’s legislation on land use relies on the public hearing as its main instrument of public engagement. Public hearings have been criticized as failing to foster a deliberative and effective process for public engagement. Critics have suggested a host of other approaches for earlier and more thoughtful engagement. Some BC local governments have embraced other forms of public engagement (some of which are authorized by the Community Charter). Is the time right to amend the Local Government Act’s and the Vancouver Charter’s provisions on land-use bylaws to expressly enable a broader range of public engagement on land-use bylaws? If so, then precisely how should BC’s legislation be amended?

Options for reform

Readers will notice that options for many of the issues in the consultation paper are introduced by describing them as a spectrum or a range. That’s probably an apt description of the options for this issue—up to a point. But it’s better to say that this issue generates potentially a large number of options, some of which differ in degrees, but others of which introduce quite different approaches to resolving the issue and have little in common with the other options.

As a starting place, the first option is simply to retain the status quo. Some readers might conclude that the current legislation in the Local Government Act and Vancouver Charter provides the best legal framework for public engagement on land-use bylaws.

Supporters of the current law could point to some perceived strengths:

•   it gives the public a platform to make representations directly to local-government decision makers;

•   it has a well-defined procedure and provides for extensive disclosure of information;

•   it has an extensive body of case law, which lends certainty to the legal framework.

But from another standpoint these strengths can appear as weaknesses. Each of these points feeds into criticisms of the current law:

•   it relies too much on the public hearing as the only form of public engagement, which elevates a forum that doesn’t foster consensus, deliberation, and informed decision making;

•   it is heavily rule-bound and formal, leading to frustration for both local governments and the public;

•   it tends to empower only select segments of the public.

Another option, which would begin to respond to some of the criticisms of public hearings, would be to amend BC’s legislation on land use to have it expressly enable other forms of public engagement. There are two approaches that could be taken to implement this option.

One approach would be to add a new section that provides a general authorization to local governments to use other forms of public engagement. Such an approach would highlight the desirability of using other forms of public engagement. It would also give local governments a great deal of flexibility in employing these other forms of public engagement.

But this approach would also have some significant downsides. In practice, it might not amount to much of a reform to the law. Local governments are already free to use other forms of public engagement. So it’s not clear what a legislative authorization would really add to the legal framework.

A second approach would be to amend BC’s legislation and require that local governments use specific forms of public engagement on land-use bylaws. This approach would follow in the footsteps of one other province. Ontario’s legislation specifically calls for a local government to hold an open house in certain circumstances.

There are advantages to this option. If a specific form of engagement—such as an open house—is seen to be particularly helpful for the development of a land-use bylaw, it could be expressly identified in the legislation. This approach would create a high level of certainty for local governments about the nature and extent of their obligations for public engagement.

Having additional forms of public engagement in the legislation might also improve the public hearing. It would make the hearing less of an all-or-nothing event. The public would have another opportunity at another forum to make its views known. This could expand the range of comment and lessen the pressure often felt at public hearings.

But there are also drawbacks to this option. It would add more time to local governments’ consideration of land-use bylaws. This could lead to direct costs for local governments. It could also inhibit real-estate development.

This approach could also perpetuate features of BC’s legal framework that have attracted recent criticism. It would add a new set of imperative rules to that framework. And it would also ensure that public hearings continue to have a major place in that framework.

Another option would involve taking a significantly different approach to the legal framework. Instead of rule-based legislation that relies mainly on the public hearing, a reformed legal framework could draw instead on principles of public engagement, which were discussed elsewhere in the consultation paper. A principles-based approach to public engagement with flexibility around the forms of engagement also enables opportunities for co-designing the forms of engagement together with First Nations.

There are different ways to design this option. One approach would be simply to require that local governments undertake public engagement that is consistent with the principles. This would be the simplest way to amend the legislation. It would also leave the most flexibility in the hands of local governments to carry out public engagement.

But this approach could also be criticized. Critics could say that leaving public engagement to local governments with only the guidance provided by a list of principles is too vague and uncertain. There is also a risk that this uncertainty could spark disputes that would lead to litigation. It also risks leaving the decision of whether to consult and cooperate with First Nations largely in the hands of individual local governments with little guidance.

Another approach would be to require local governments to have a public-engagement policy. Under this approach, local governments would have to spell out in some detail how they plan to carry out public engagement on land-use bylaws. This approach lends itself to a framework that explicitly includes expectations and obligations around co-development of a public-engagement policy with First Nations governments.

Other Canadian provinces have adopted this approach in their legislation. For example, Nova Scotia simply has a legislative provision requiring a policy.

Alberta and Québec provide more detail in their legislation and regulations.

Alberta has legislation requiring the establishment of a “public participation policy.” The policy is subject to guidelines spelled out in a regulation.

Québec takes an approach that integrates the local government’s policy with legislative principles of public engagement.

These approaches have several advantages. They strike a balance between flexibility for local governments and certainty in the forms of public engagement that may be used. This would allow for a greater range of forms of public engagement to be considered, all within a principled legal framework. Such an approach may address significant concerns with the current law: its failure to provide a deliberative forum and its formal and rule-bound nature.

But there may be disadvantages to this approach. Critics could say that it might represent a step backward for the public, who could seem to lose clear rights to information and to make representations directly to the local government.

Summary of options

•   BC legislation on local-land-use bylaws should be amended to require local governments to have a principles-based public-engagement policy.

•   BC legislation on local-land-use bylaws should be amended to require local governments to develop a principles-based public-engagement policy in consultation and cooperation with First Nations rights and title holders.

•   BC legislation on local-land-use bylaws should be amended to require local governments to have a public-engagement policy, the content of which to be determined by the local government.

•   BC legislation on local-land-use bylaws should be amended to require local governments to use the following forms of public engagement in addition to the public hearing: . . . [open option inviting readers to fill in their own suggestions].

•   BC legislation on local-land-use bylaws should be amended to provide local governments with a general authorization to use forms of public engagement other than public hearings.

•   BC legislation on local-land-use bylaws should not be amended to deal with forms of public engagement other than the public hearing.

To respond to this issue or to read more about issues like this one, please visit the Renovate the Public Hearing Project webpage.

The post Spotlight on renovating the public hearing: Should BC legislation be amended to enable other forms of public engagement on local land-use bylaws? first appeared on British Columbia Law Institute.

Brief statement of the issue

The Local Government Act places the public hearing at the centre of public engagement on land-use bylaws. It grants local governments only a tightly limited scope in which they may decide not to hold a public hearing. In this respect, public hearings are the legislated default and standard for engaging the public on local-land-use bylaws in BC.

But the public hearing has recently come under criticism. Critics have argued that public hearings don’t provide a deliberative forum for productive commentary on a land-use bylaw. Other forms of public engagement may in fact do a better job of meeting the goal of using the public’s input to improve land-use decision making.

Other jurisdictions have given their local governments more freedom not to hold a public hearing and more flexibility to use other forms of public engagement. To what extent should BC consider following the same path by allowing its local governments more scope not to hold a public hearing?

Discussion of options for reform

This is an issue that’s capable of generating a wide range of options. This range includes everything from retaining the current legislation to incremental reforms that keep the same basic structure in place to new directions that de-emphasize the public hearing in favour of different approaches to public engagement.

A majority of committee members favoured an option that took this last approach, which would significantly change BC’s legislation on public hearings. In their view, this option unites several of the major themes that run through this consultation paper by embodying the following features:

•   it responds to criticisms of the overly formal and adversarial nature of public hearings—which have inhibited deliberation and the flow of information useful for informed land-use decision making—by opening up options to use other forms of public engagement;

•   it gives local governments more flexibility in deciding how to conduct public engagement in respect of a specific land-use bylaw;

•   it engages the principles of public engagement discussed elsewhere in the consultation paper by enshrining them within a new, principles-based approach to legislation.

In this majority’s view, allowing local governments to eliminate the public hearing if they allow for other forms of public engagement that advance the principles discussed earlier would have several advantages.

First, it gives local governments more tools to tailor public engagement on land-use bylaws to local circumstances. A major criticism of public hearings is that they’ve failed to contribute to better land-use decision making. This failure may be due to the adversarial nature of a public hearing. Or it may be due to the perceived tendency of public hearings to empower groups favouring the status quo. These concerns may be overcome by giving local governments the power to draw on different ways of engaging the public.

Second, it moves the legislation away from rule-bound regulation of how local governments engage with their public. Another frequent complaint of public hearings is that their formal nature inhibits deliberation and frustrates local governments. A shift in focus from detailed rules to broad principles addresses this concern.

Third, it ensures that public engagement takes place on all land-use bylaws on a consistent basis that’s informed by stated principles. Under the Local Government Act, a local government must hold a public hearing in most cases, but it’s not required in some cases (e.g., if the land-use bylaw at issue is a zoning bylaw that’s consistent with the official community plan for the area it covers). This means that, in some cases, the public hearing may be eliminated and no public engagement need take place at all. This creates a kind of all-or-nothing feel to the current legislation, which could be addressed by ensuring that public engagement takes place in all cases.

But some committee members weren’t in favour of this option. In their view, the current law, which calls for public hearings in all but limited circumstances, still provides the best framework for public engagement on local-land-use bylaws.

These committee members were concerned about what they saw as uncertainties in the majority’s proposal. In particular, they were concerned about the following results:

•   local governments using their enhanced flexibility not to hold a public hearing and using a form of public engagement that doesn’t provide direct access to decision makers;

•   local governments using their enhanced flexibility to provide less information to the public;

•   uncertainty over the meaning of the guiding principles leading to litigation.

This approach could be criticized as failing to respond to concerns about the public hearing. In these committee members’ view, these concerns can be best addressed by incremental changes to current laws on public hearings, rather than replacing public hearings with a new system of public engagement.

Between these two ends of the spectrum of options, there may be a wide range of other options. In particular, there are potentially a large number of ways to build on the current law, which allows for the public hearing not to held in a specific set of circumstances. This logic could be extended, with legislation that keeps public hearings at the centre of public engagement on land-use bylaws but expands the circumstances in which the public hearing could be eliminated.

This approach could be seen as striking a balance that preserves what’s best in the current law and addresses criticisms of it. On the other hand, it could be argued that this approach is too limited to deliver a real improvement to the law.

Summary of options for reform

•   An amendment to BC legislation should enable principle-based public disclosure and engagement processes for amendments to local-land-use bylaws, that when used by local governments would not require public hearings.

•   BC’s legislation on public engagement on land-use bylaws should allow local governments not to hold a public hearing when the following conditions are met: . . . [open option inviting readers to fill in their own suggestions].

•   BC’s legislation on public engagement on land-use bylaws should continue to only allow local governments not to hold a public hearing when (a) the proposed bylaw at issue is a zoning bylaw; (b) there is an official community plan in effect for the area that is the subject of the zoning bylaw; and (c) the zoning bylaw is consistent with that official community plan.

To respond to this issue or to read more about issues like this one, please visit the Renovate the Public Hearing Project webpage.

The post Spotlight on renovating the public hearing: When should the public hearing not be held? first appeared on British Columbia Law Institute.

We note that the province has just adopted Bill 44, a new law that limits the use of public hearings. In this consultation, we hope to hear from all members of the public, and look forward to receiving comments that will assist the BCLI Renovate the Public Hearing Project Committee in developing its final recommendations for reform.

Public hearings have been a feature of BC’s land-use legislation for local governments for about 100 years. Recently, critics have questioned whether public hearings are serving the purpose of providing a deliberative forum to assist local governments in making decisions on land-use planning. The Renovate the Public Hearing Project provides an opportunity to think about public engagement on land use from first principles, consider new insights into group deliberation, and create a better way for local governments to engage the public.

Copies of the consultation paper, a short backgrounder summarizing its contents, and a link to our survey are all available at the project webpage. The consultation is open until 15 March 2024.

The post Have your say on reforming public engagement on land-use bylaws first appeared on British Columbia Law Institute.

In consideration of BCLI’s ongoing work as part of the Renovate the Public Hearing Project, this legislative comment will outline changes to the public hearings process introduced by the Act and consider the reasons for amendment and the consequences for public engagement going forward.

What Amendments Does the Act Make to Public Hearings?

Section 464 of the Local Government Act requires municipalities and regional districts throughout BC to hold a public hearing before they adopt an official community plan (OCP) bylaw or a zoning bylaw. The statute is clear that the purpose of holding a public hearing in these circumstances is to “[allow] the public to make representations to the local government respecting matters contained in the proposed bylaw.” Prior to the introduction of Bill 44, the Local Government Act provided one exception to this rule, allowing local governments the option to hold a public hearing on a proposed zoning bylaw if the bylaw was consistent with the area’s official community plan. Local governments were required to provide notice under section 467 when they chose to waive a public hearing according to this provision.

Changes introduced by the Housing Statutes (Residential Development) Amendment Act now limit the discretion that was previously afforded to local governments. Amendments to section 464 now state that a local government cannot hold a public hearing in two specified circumstances: first, where a proposed zoning bylaw permits residential development that is consistent with an existing OCP, and second, where a proposed bylaw relates to small-scale multi-family housing developments. Bylaws that permit the development of mixed-use projects are expressly caught by the first of these exceptions, so long as the residential portion of the development accounts for 50% or more of the total development area. Other amendments now require local governments to give notice when they are prohibited from holding a public hearing. The content of the notice to be given is the same as that required where a local government elects to not hold a public hearing.

Similar amendments have also been made to the Vancouver Charter. Like section 464 of the Local Government Act, section 566 of the Vancouver Charter requires Vancouver City Council to hold a public hearing before it “make[s], amend[s], or repeal[s]” a zoning bylaw. However, unlike the Local Government Act, the Charter does not include a provision that offers City Council the choice to waive a public hearing. Rather than limit any existing discretion, then, amendments introduced by the Housing Statutes (Residential Development) Amendment Act instead create a new exception where public hearings cannot be held. Specifically, amendments to section 566 now state that Council “must not” hold a public hearing on a zoning bylaw that relates to the development of small-scale multi-family housing. A framework for such zoning has been expressly set out in the addition of sections 565.03-565.09 to the Charter. As with the Local Government Act, Council is also required to give notice when they are prohibited from holding a public hearing.

What is the Reasoning Behind These Changes?

The Provincial Government introduced Bill 44 to streamline residential development and support the delivery of more homes, all in an effort to combat the housing crisis in BC. It is expected that these amendments to the public hearings process will aid in that goal. As the Minister of Housing, Ravi Kahlon, explained when introducing the bill for second reading on 7 November 2023, “public hearings can slow down getting approvals for new homes, delaying construction and adding costs to housing. These delays often result in fewer units being built or in developers making the units more expensive, to offset the added costs.” By barring local governments from holding public hearings on zoning bylaws that conform to an existing OCP, the Provincial Government seeks to eliminate redundant processes and increase efficiency in residential development.

What Are the Implications for Public Engagement?

Changes introduced by the Housing Statutes (Residential Development) Amendment Act do not seek to deny public engagement opportunities. Although local governments are now prevented from holding public hearings in prescribed circumstances, a public hearing remains mandatory where a local government seeks to adopt an OCP or a zoning bylaw that does not conform to an existing OCP (including where an OCP is not in place). In Vancouver, meanwhile, public hearings will remain mandatory for all zoning bylaws that do not concern small-scale multi-family housing.

Alternative forms of public engagement also remain available in those cases where public hearings cannot be held. The Local Government Act, for instance, still requires local governments to provide opportunities for consultation in the development of an OCP. This means that public engagement is not lost where local governments are precluded from holding public hearings. Rather, public engagement will take place earlier in the land use development process. And although other processes for public engagement are not mandated by legislation, they may well take on increased significance as the new framework comes into effect. In cases where public hearings cannot be held, the requirement for local governments to give notice will also ensure that residents remain informed of the developments taking place in their communities as projects proceed forward.

Even in the face of these statutory reforms, public hearings remain an important tool for public engagement and will continue to occur. There is still room, therefore, for discussion of the public hearing’s place in land use planning, and of public engagement more broadly. This is something that BCLI will be exploring further in its upcoming Renovate the Public Hearing Project consultation paper, due for release next week.

The post New BC Housing Legislation Brings Changes to the Public Hearings Process first appeared on British Columbia Law Institute.