By Perlene Morrison, K.C., Hilary Newman & Curtis Doyle

Once again, the time has come to review the year that was and to chart the course for the year ahead. For municipalities and planning professionals in Prince Edward Island, this process often includes a survey of the decisions made by the Island Regulatory and Appeals Commission. The Commission is an independent tribunal that decides appeals from provincial and municipal land use planning decisions. In 2023, the Commission released eight decisions that address substantive planning principles. In this summary, we will review those decisions and discuss their implications for municipalities and planning professionals in Prince Edward Island. We will also review recent amendments to the Planning Act that will affect the course of land use planning in the year to come.

The Commission interprets bylaws by considering their text, context and purpose

In LA23-01, the appellants appealed from a decision by the Rural Municipality of Miltonvale Park to issue a development permit for a ground-mounted solar array. The Municipality’s Zoning & Development Bylaw did not expressly regulate ground-mounted solar arrays. The bylaw did, however, provide that a “private utility structure” could be located in any zone in the Municipality. In issuing the development permit, the Municipality concluded that the proposed solar array constituted a “private utility structure” and was, therefore, permitted in any zone. On appeal to the Commission, the main question was whether the Municipality “properly applied” the bylaw in determining that the proposed solar array constituted a “private utility structure” under the bylaw. The Commission explained that this interpretive question must be answered with reference to the text, context, and purpose of the bylaw. In examining the text, the Commission considered the way in which the bylaw used specific words such as “utility” and “public utility”. In examining the context, the Commission considered related bylaw provisions which regulated the development of other forms of renewable energy systems in the Municipality. And in examining the purpose, the Commission considered the fact that the bylaw was intended to give “practical effect” to the official plan of the Municipality. After examining each of these elements, the Commission agreed with the Municipality that the proposed solar array constituted a “private utility structure” under the bylaw. For that reason, the solar array was permitted in any zone. The Commission dismissed the appeal.

Development decisions must be based on sound planning principles

In LA23-02, the Prince Edward Island Energy Corporation appealed from a decision by the Rural Municipality of Eastern Kings to deny an application for a permit to develop a 30-MegaWatt wind farm expansion in Eastern Kings. Before the Commission, the PEIEC argued, among other things, that the Municipality “made a procedural error by failing to provide reasons for its decision to not allow the special permit application”, and that the Municipality’s decision to deny the application “did not have merit based on sound planning principles within the field of land use planning.” After undertaking a functional and contextual review of the reasons provided by the council of the Municipality in meeting minutes, the Commission found that the meeting minutes were sufficient in a procedural sense, in that they set out the reasons why a majority of the council of the Municipality voted against the PEIEC’s application.  With respect to PEIEC’s other argument, that the Municipality’s decision to deny the application did not have merit based on sound planning principles, the Commission agreed.  As the Commission explained, the Municipality was required to process “thousands of pages of highly technical information” in order to assess the permit application. This technical information included reports and studies prepared by PEIEC as well as a “comprehensive” Environmental Impact Assessment prepared by the Department of Environment, Energy and Climate Change. The Commission noted that the council of the Municipality, “while well intentioned,” had no expertise in dealing with the type of information before it, and did not engage an external planning professional to assist in the review. In the result, the Commission concluded that council’s reasons for denying the application were not grounded in sound planning principles and were insufficiently responsive to the technical information contained in the application materials. The Commission remitted the matter back to the Municipality “to have the application duly processed in the proper manner with the Municipality engaging the appropriate planning professionals” to assist in its assessment of the application.

The expectations of residents do not necessarily constitute valid planning considerations

In LA23-03, a developer appealed from a decision by the City of Charlottetown to reject a request to amend the Zoning Map of the Zoning & Development Bylaw. The request pertained to a residential subdivision that was, according to the evidence, approximately 75% complete. The developer sought to have the remaining undeveloped portion of the subdivision rezoned from Single-Detached Residential, Small (R-1S) to Single-Detached Residential, Narrow (R-1N). This rezoning, if implemented, would increase the total number of single-detached dwellings in the final phase of the subdivision from 29 to 46. The City’s professional planning staff prepared a report recommending that the rezoning request be approved. Planning board and council, however, rejected the rezoning request. According to the Commission, the reasons given to reject the request were “almost exclusively grounded” in the “expectation” of nearby residents that the final phase of the subdivision would have 29 rather than 46 single-family homes. On appeal, the Commission was not persuaded that the “expectation” of nearby residents was a valid planning consideration. As the Commission noted, present zoning is not a guarantee of future zoning, especially when the bylaw and official plan expressly contemplate and allow for the process of rezoning. In the result, the Commission quashed the City’s decision and ordered that the subject property be rezoned.

The Commission may require evidence from accredited planning professionals

In LA23-04, the appellants appealed from a decision by the Minister of Agriculture and Land to deny their application to subdivide agricultural land for the purpose of creating a residential subdivision. In support of his decision to deny this application, the Minister relied on the opinions and analysis of an individual who was employed by the Government as a “Land Use and Planning Act Specialist” but who was not a member “of the Canadian Institute of Planners or any other professional organization for professional planners.” The appellants, by contrast, presented evidence from an accredited professional planner who opined that the Minister had erred in interpreting the statutory language that constrained his discretion in this matter. In its analysis, the Commission placed little weight on the opinions and analysis of the non-accredited “Land Use and Planning Act Specialist”. The Commission explained that, although “the Minister may not have planning professionals on staff”, he must nevertheless “solicit advice from accredited professionals” when interpreting discretionary provisions of the legislation. The Minister’s failure to do so, in this case, meant that his decision to deny the application was not grounded in sound planning principles. The Commission quashed the Minister’s decision and ordered that the property be subdivided.

A municipal council must provide thorough, cogent, and thoughtful reasons when evaluating planning applications

In LA23-05, the appellant appealed from a decision by the City of Charlottetown to deny her request for bylaw variances. The appellant had requested these variances in order to construct two dwellings on a Charlottetown property which she proposed to subdivide into two parcels. The City’s planning staff recommended that the application be approved, but planning board recommended that it be denied. Council followed the recommendation of planning board and denied the application. On appeal to the Commission, the appellant argued that council had erred by failing to provide adequate reasons in support of its decision. As the appellant described it, the transcript of the relevant council meeting provided “no reasons whatsoever” for council’s decision to deny the application. The Commission agreed with the appellant that council’s reasons for denying the application were insufficient. As the Commission concluded, the transcript of the relevant council meeting contained “zero discussion or deliberation with respect to the [a]pplication.” The motion was read, questions were called in a cursory fashion, and the vote was held with no comment from a single council member. The Commission explained that council must provide “thorough, cogent, and thoughtful” reasons when evaluating planning applications from the City’s residents. The Commission also indicated that it expects especially thorough reasons when council rejects the recommendation of the City’s professional planning staff. In the result, the Commission quashed the City’s decision and ordered that the variances be granted on certain conditions.

The Commission has no jurisdiction to hear an appeal from a municipal exercise of a “legislative function”

In LA23-06, the appellants appealed from a decision by the Rural Municipality of North Shore to adopt a new land use bylaw. The Municipality adopted this new bylaw after an amalgamation had necessitated a “full review” of the bylaws previously in force. The new bylaw incorporated many changes that reflected this amalgamation: new municipal boundaries were outlined, old zone names were replaced, and new zones were “created to better reflect certain categories of land uses”. The new bylaw also rezoned the appellants’ property in a way that the appellants found to be “highly restrictive”. In their appeal, the appellants asked the Commission to quash the Municipality’s decision to adopt the new bylaw insofar as the bylaw applies to their property. The appellants grounded their appeal in section 28(1.1)(b) of the Planning Act, which gives the Commission jurisdiction to hear an appeal from a municipal decision to adopt an “amendment” to a bylaw. The Commission concluded, however, that it did not have jurisdiction to hear this appeal. The Commission explained that the decision to adopt an entirely new bylaw could not properly be regarded as a decision to adopt an “amendment” to a bylaw.  Instead, the decision to adopt the new bylaw was an exercise of the Municipality’s “legislative function” that “must be viewed as something more than a series of amendments to those [bylaws] that previously existed.” As the Commission stated, “[t]hat kind of decision is not one which may be appealed to the Commission.”

The Commission does not have jurisdiction to determine boundary line disputes

In LA23-07, the appellants appealed from a decision by the Minister of Housing, Land and Communities to issue a development permit to their next-door neighbour. The permit allowed the neighbour to construct a non-commercial storage building on his property. On appeal to the Commission, the appellants alleged that the storage building was not set back the appropriate distance from the boundary line separating the two properties. The difficulty before the Commission, however, was that the location of the relevant boundary line was in dispute. The parties presented inconsistent and conflicting evidence with respect to the location of this boundary line. The Commission explained that it does not have the jurisdiction to settle a boundary line dispute. And since the Commission could not settle the boundary line, it could not determine whether the building in question met the setback requirement. Accordingly, the Commission decided to hold the appeal in abeyance “while the Appellant seeks to settle the location of the boundary line.”

The Commission may dispense with its Rules of Practice and Procedure

In LA23-09, the appellant appealed from a decision by the Minister of Housing, Land and Communities to deny three permits for accessory buildings on her property. The Commission, in this order, addressed the preliminary question of whether the appellant’s notice of appeal was filed within the prescribed limitation period. As the Commission explained, the Planning Act provides that an appeal must be filed “within 21 days after the date of the decision being appealed”. The Commission’s Rules of Practice and Procedure, moreover, provide that a notice of appeal received after 4:00pm on a given day shall be deemed to have been filed “on the next day”. In the matter at hand, the deadline for filing the notice of appeal was January 3, 2023. As it happened, the Commission received the appellant’s notice of appeal at 4:09pm on that very day. On appeal to the Commission, the Minister took the position that, since the notice of appeal was filed after 4:00pm on January 3, the Rules deemed it to have been filed on “the next day” – i.e., on January 4, after the expiry of the statutory limitation period. The Commission, however, rejected this argument. The Commission explained that, while the twenty-one-day appeal period is legislated in the Planning Act, the 4:00pm cut-off is a rule imposed by the Commission under its statutory authority to make its own rules of practice and procedure.^[1] The Rules, moreover, provide the Commission, in its sole discretion, with the authority to dispense with the application of a given Rule. In the matter at hand, the Commission decided, “in the interests of fairness”, to dispense with the 4:00pm cut-off. Accordingly, the Commission concluded that the notice of appeal was filed within the legislated limitation period. The Commission ordered that the appeal be heard on its merits.

Planning Act amendments

Municipalities and planning professionals will also want to take note of recent legislative developments. In 2023, the Legislature enacted significant amendments to the Planning Act.^[2] In summary, these amendments to the Planning Act provide municipalities with more tools for bylaw enforcement by municipal appointees. They also appear to be intended to restrict the total number of planning-related appeals to the Commission. Highlights of these amendments include:

• Provisions that empower municipalities to appoint enforcement officers who can enter land, conduct tests, and issue orders to secure compliance with municipal bylaws.^[3]
• Provisions that increase the fines payable on summary conviction for contraventions of the Planning Act or of certain municipal bylaws. Individuals are now liable to a maximum fine of $10,000 and corporations are now liable to a maximum fine of $100,000.^[4]
• Provisions that restrict the scope of individuals who can, in any given case, appeal a planning-related decision to the Commission.^[5]

Time will tell whether these amendments have their intended effect. Legislative records indicate that the Legislature may enact additional amendments to the Planning Act in 2024.^[6]

Lessons for the New Year

Thousands of planning-related decisions are made each year in Prince Edward Island. Only a tiny fraction of those decisions are subject to review by the Commission, which exercises an oversight function that searches for legal errors and procedural defects. Its decisions serve as guideposts for municipalities, developers and planning professionals as they move forward – together – to use our most precious resource in ways that are principled, efficient, and sustainable. It is hoped that this summary will contribute to that objective in some small way. By drawing upon the lessons learned over the last year, decision-makers will not only minimize the risk of an appeal to the Commission, but also contribute to their proven record of making sound planning decisions for the benefit of Prince Edward Island and its residents.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please do not hesitate to contact one of the members of our Municipal Group at Stewart McKelvey in Charlottetown: Perlene Morrison, K.C., Hilary Newman and Curtis Doyle.

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[1] An authority vested in the Executive Committee of the Commission by the Island Regulatory and Appeals Commission Act, RSPEI 1988, I-11, s. 3(7).
[2] RSPEI 1988, c P-8.
[3] An Act to Amend the Planning Act, SPEI 2023, c. 4, ss. 2-4.
[4] An Act to Amend the Planning Act, SPEI 2023, c. 4, s. 7.
[5] An Act to Amend the Planning Act (No. 2), SPEI 2023, c. 31, s. 1.
[6] See, for example, Bill no. 112 – An Act to Amend the Planning Act (No.3), which passed second reading in the Legislature on November 29, 2023.