Perlene Morrison and Hilary Newman

During the fall 2016 legislative sitting, the Province of Prince Edward Island passed legislation that results in significant changes to the Planning Act. The amendments received royal assent on December 15, 2016 and will be proclaimed into force at a future date.

A new provincial land use policy

An Act to Amend the Planning Act was promoted during the Province’s spring 2016 legislative sitting. In April of 2016, prior to this first reading, municipal administrators received a notice from the Province’s Municipal Affairs and Provincial Planning Division which introduced a new Provincial Land Use Policy (the “Policy”). This Policy was issued under the authority of the Planning Act, and was intended to provide goals and strategies for land use on the Island. Municipalities were informed that the Policy would assist in guiding future legislative and regulatory changes in the Province, and that once the Policy was adopted, municipalities would be required to ensure that their official plans and bylaws were consistent with the Policy. The new amendments to the Planning Act, in combination with the Policy, will assist the Province in implementing its goals and strategies for planning and development on the Island.

The new amendments, once proclaimed into force, will have a significant impact on how municipalities make planning and development decisions. The most significant changes to the Planning Act are outlined below.

Expanded Regulation Making Powers of Executive Council

Prior to the new amendments, the provincial government had the authority to establish minimum requirements applicable to a municipality’s official plan. The legislative changes will also allow executive council to establish minimum requirements applicable to a municipality’s bylaws. A list of matters for which the provincial government may make regulations respecting official plans and bylaws are enumerated in the new legislation. This list includes, but is not limited to:

• minimum requirements respecting the content, development, administration and implementation of interim planning policies and bylaws, official plans and bylaws and secondary plans and reviews of official plans and bylaws,
• standards for educational qualifications, training and certification applicable to the persons responsible for the administration or implementation of a document referred to above,
• minimum procedural requirements, including procedures for public consultation and notice; and
• minimum requirements related to the content, development and administration of planning tools, including but not limited to development agreements and variances.

The legislative changes require municipalities to make any amendments necessary in order to bring their official plans and bylaws into conformity with these new regulations. Time limits are prescribed for making the necessary amendments, requiring municipalities to amend official plans and bylaws within two years from the date these regulations are published in the Gazette, or during the municipality’s next five-year review, whichever occurs first. However, notwithstanding the time frame for amending official plans and bylaws, the new legislation requires municipalities to administer official plans and bylaws in a manner that is consistent with the regulations from the time such regulations are passed.

The consequences of a municipality failing to amend its official plan and bylaws in accordance with the above time frame are also prescribed in the new legislation. The Minister will be authorized to specify any part or parts of a municipality’s official plan or bylaws null and void, and to determine which provisions of the provincial regulations will apply in their stead. If a municipality fails to amend its official plan and bylaws in the prescribed time frame, and has been declared a planning authority, the Minister is authorized to revoke that declaration and declare the municipal council’s official plan and bylaws null and void. If the Minister exercises this authority, the Minister has exclusive jurisdiction in that municipality with respect to subdivision approvals, development permits and other approvals.

Expanded Provincial Development Standards

The legislative changes also authorize the provincial government to adopt regulatory standards on an expanded list of matters, including but not limited to, standards respecting:

• protection of the natural environment and resources lands (“resource lands” are defined in the new legislation as lands that support or have the potential to support uses such as agriculture, forestry, aquaculture, excavation, fishing and energy production),
• identification, preservation and protection of landscape features, including but not limited to viewscapes; and
• sound planning, engineering and environmental principles.

The new amendments, like the prior Planning Act legislation, require municipalities to ensure official plans and bylaws are not less stringent than any provincial regulations.

Public Input

The new amendments clarify public input requirements prior to the adoption of an official plan, a planning bylaw, or any amendments to the same. Prior to the legislative changes, a public hearing was required to give residents and other interested persons an opportunity to make representations before the adoption or review of an official plan and a notice of the public hearing was required to be published on at least two occasions in a newspaper circulating in the area. The new legislation clarifies that a public hearing is also required prior to making any amendment to an official plan, before the making or amending of any planning bylaw, and before a Planning Board makes any recommendation to Council regarding the confirmation of the official plan. Notice requirements for public hearings are not yet known as they will be prescribed by regulation.

Ability to Adopt a Secondary Plan

The legislative changes to the Planning Act will give municipalities the ability to create a secondary plan separate from its official plan and bylaws. The implementation of a secondary plan will allow a municipality to designate separate planning and development requirements that are applicable to a specific area or areas within a municipality.

Limits on Variances and Development Agreements

The new amendments permit a Council to grant variances, subject to the regulations, provided the official plan contains policies relating to granting variances. The Act, however, now defines a variance and limits it to variances in lot size or dimensions, setbacks, area, or the height or size of a structure.

Likewise, where an official plan contains policies relating to development agreements, the amendments specify and limit the content of development agreements used in connection with amending a bylaw, granting a variance, or approving a conditional use.

Appeals to the Island Regulatory & Appeals Commission

Prior to the new amendments, any person who was dissatisfied by a municipal council’s decision made in respect of an application by that person, or any other person, under a bylaw for a building, development or occupancy permit, a preliminary approval of a subdivision, or a final approval of a subdivision, had a right to appeal the decision to the Island Regulatory & Appeals Commission. Two exceptions to this right of appeal were stipulated in the Planning Act, namely, the final approval of a subdivision where the grounds of appeal could have been heard and determined at the subdivision’s preliminary approval stage and, within a resort development, the final approval of a subdivision or development permit where the grounds of appeal could have been heard and determined at the preliminary approval stage of that subdivision or development.

The new amendments retain a person’s right of appeal, along with the limited exceptions, but increase the Island Regulatory & Appeals Commission’s jurisdiction by allowing any person a right of appeal with respect to any other authorization or approval that may be granted or issued under the bylaw.

Anticipated regulatory changes

A target date for the proclamation of An Act to Amend the Planning Act is anticipated to be by the end of this year; however, this date is subject to change. The Province will be publishing at least two sets of draft regulations prior to the amendments being proclaimed into force. These draft regulations will include:

1. a regulation establishing minimum requirements applicable to official plans and bylaws; and
2. a regulation establishing minimum requirements for the content, development and administration of planning tools, including development agreements and variances.

Although no draft regulations have been published as of this date, the April 2016 notice from the Municipal Affairs and Provincial Planning Division indicates the type of regulatory changes that municipalities can anticipate. The notice stated that in the future, all planning documents will need to be developed, administered, and certified by professional planners and development officers. Municipalities should engage in discussions with the provincial government as to the type of education and certification requirements that will be expected of municipal planners and development officers, and how existing municipal employees may be integrated into the new regulatory requirements.

Challenges for Municipalities

The new Planning Act amendments encourage the uniformity of planning and development across PEI. Municipalities need to be mindful of the time limits within which they must conduct the required reviews of their official plans and bylaws and they will have to assemble the necessary expertise to undertake that work. Municipal councils will be required to pay careful attention to new regulatory requirements, ensuring that official plans and bylaws are administered in a manner that is consistent with such regulations from the time they are passed.

The legislative changes to the Planning Act create an additional layer of regulation for planning and development within municipalities. The amendments provide a more detailed and specific process for implementing official plans and planning bylaws. All official plans and bylaws will need to be evaluated against provincial regulations to ensure consistency in their content, administration and implementation.

Next Steps

We encourage municipalities to contact their legal and planning advisors to obtain advice as to what is required in order to comply with the new legislation. While much is still unknown as we await the publication of the new regulations, it is clear that the legislative changes will have a significant impact on how municipalities make planning and development decisions in the future.

If you have any questions about this update or would like assistance developing municipal procedures in preparation for the proclamation of the amendments to the Planning Act, please do not hesitate to contact our municipal government team at Stewart McKelvey in Charlottetown, Perlene Morrison and Jonathan Coady.