Jonathan Coady and Chera-Lee Gomez

It’s that time of year – the moment when we look back at the year that was and chart our course for the year ahead. For many councillors, administrators and planning professionals in municipalities across Prince Edward Island, that process will include a review of the decisions released by the Island Regulatory and Appeals Commission (“Commission”). In 2016, the Commission decided five appeals arising from the regulation of land use and development. This summary will identify the principles emerging from those decisions and, hopefully, assist municipalities in making sound planning decisions in the coming year.

I. Consideration of a request for an amendment as part of an ongoing bylaw review process is not a decision capable of being appealed to the Commission.

In Order LA16-01, the landowner requested that the municipality amend its zoning and development bylaw to expand the list of surfacing materials that were exempt from permitting requirements. The municipality was in the midst of its mandatory bylaw review process under the Planning Act. The municipality agreed to consider the request as part of its ongoing review. Dissatisfied with that response, the landowner filed an appeal with the Commission. In dismissing the appeal on jurisdictional grounds, the Commission found that not all decisions made by a municipality were capable of being appealed. The right of appeal to the Commission was limited to the types of decisions listed in section 28 of the Planning Act.¹   While the Commission acknowledged that a decision whether “to adopt an amendment to a bylaw” was capable of being appealed, the Commission did not have jurisdiction over the bylaw review process and the decision to consider a proposed amendment as part of that legislative process.² Absent a decision related to a particular application or property, the Commission concluded that it was without jurisdiction to hear the appeal.

II. The Commission will exercise deference when a municipality follows its bylaw procedures, considers the relevant factors, and acts fairly.

In Order LA16-02, the developer applied for a permit to construct a wooden structure in the flanking yard of his property. According to the zoning and development bylaw, this type of accessory structure was discretionary. The municipality considered the factors listed in the bylaw for this type of development as well as the bylaw as a whole. In the end, council exercised its discretion to deny the application and recorded detailed reasons for its decision. The developer appealed. In dismissing the appeal, the Commission noted that the permit being sought was for a discretionary – and not an as-of-right – structure.³ The municipality was not obligated to exercise its discretion in the manner being requested by the developer. The obligation of the municipality, according to the Commission, was to follow the procedure set forth in its bylaw, provide a reasoned explanation for its decision in light of the relevant factors, and to act fairly.⁴ Having done those things, the municipality was entitled to deference from the Commission and the appeal was denied.

III. Absent a dispute about the material facts and faced with a question of bylaw interpretation, a hearing before the Commission may be held in writing.

In Order LA16-03, a neighbouring landowner appealed a decision by the municipality to grant a permit for an accessory building. The material facts underlying the appeal were not in dispute. The permit had been granted, and the accessory building had been constructed. The issue was whether the building was located in a front yard. The lot in question had a cottage facing the river and was served by a private right-of way. Under the development bylaw, an accessory building was prohibited from being located in the “front yard” of a lot. Given that the facts were not contested by the parties and the issue was one resting on the “interpretation of the law,” the Commission proceeded to hear and determine the appeal in writing.⁵ In the end, the appeal was dismissed. While the bylaw did define the meaning of the words “front yard,” “frontage” and “street,” those definitions were all silent as to the orientation of yards where the lot was served by a private right-of-way. Given that omission, it was open to the municipality to exercise its discretion to determine the orientation of the lot in question. That determination – where the yard adjacent to the river was found to be the front yard and the yard adjacent to the right-of-way was found to be the rear yard – was held by the Commission to be “permissible” and “consistent” with the bylaw.⁶ 

IV. A permit holder is expected to comply with all provincial laws, but the Commission is not responsible for enforcing the conditions imposed on permits.

In Order LA16-04, a neighbouring landowner appealed a decision by the Minister to grant a permit for the construction of a cottage. The landowner was concerned that the developer may not follow the conditions attached to the permit or comply with the requirements found in the Environmental Protection Act and regulations. The concerns focused mainly on the management of surface water on the property in question. In dismissing the appeal, the Commission noted that compliance with provincial laws and regulations was “assumed, expected and required” of the developer.⁷ The Commission also found that concerns regarding the enforcement of conditions imposed on a permit fell “outside” its appellate authority.⁸ That responsibility belonged to the Minister.⁹ According to the Commission, its role was limited to ensuring that the permit “met all the requirements of the Planning Act and regulations” and, for these reasons, the appeal was denied.

V. Any discretion on the part of a municipality to deny as-of-right development is strictly construed and objective evidence will be expected by the Commission.

In Order LA16-05, the developer appealed a decision by the municipality to deny a permit for the development of condominiums units. The concept being proposed was an as-of-right development in the zone defined by the zoning and development bylaw. In a divided decision, council for the municipality had rejected the concept based on a number of subjective and general concerns. In allowing the appeal, the Commission noted the longstanding case law on the subject of as-of-right developments and found that, in such cases, any residual discretion to deny an application had to be “strictly construed.”¹⁰ The Commission held that, in order to avoid an arbitrary exercise of that limited authority, a council was required to point to “objective evidence” to support its decision.¹¹ By failing to do so, the majority decision made by council was found to be irrational and unreasonable.¹²Professional planning staff from the municipality had acknowledged at the hearing before the Commission that, consistent with the advice provided to council at the time of the decision, there was no evidence that the requirements of the bylaw had not been met by the developer.¹³ The decision to deny the permit was therefore quashed by the Commission.

Lessons for Municipalities

These five principles from the Commission will directly impact a significant number of applications being considered by municipalities across Prince Edward Island in the year ahead. By implementing these principles into their decision-making processes, municipalities can mitigate – and possibly avoid altogether – the risk of a costly appeal. And that, to borrow a phrase from the Commission, is “sound planning” of a different kind.

As always, if you have any questions about this summary or would like assistance with any planning-related matter, please do not hesitate to contact our municipal law team at Stewart McKelvey in Charlottetown: Perlene Morrison, Geoffrey Connolly, QC, P.Eng. and Jonathan Coady.

¹ LA16-01 at paras. 12 and 14.
² Ibid. at para. 16.
³ LA16-02 at para. 22.
⁴ Ibid. at para. 24.
⁵ LA16-03 at paras. 9 and 15.
⁶ Ibid. at para. 34.
⁷ LA16-04 at para. 18.
⁸ Ibid. at para. 19.
⁹ Ibid. at para. 17.
¹⁰ LA16-05 at paras. 72, 73, 75, and 77.
¹¹ Ibid. at paras. 78 and 83.
¹² Ibid. at para. 83.
¹³ Ibid. at para. 81.