By Perlene Morrison, K.C. and 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 (“Commission”). The Commission is an independent tribunal that decides appeals from provincial and municipal land use planning decisions.^[1] In 2022, 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.
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1. The Commission has no jurisdiction to hear an appeal from the first reading of a proposed bylaw amendment
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   In LA22-01, a property owner had applied to the City of Charlottetown for a site-specific bylaw amendment. Municipal council gave two readings to the proposed amendment, “approving” it after the first reading and “adopting” it after the second. Dissatisfied residents appealed from council’s decision to “approve” the amendment after the first reading. The Commission concluded, however, that it did not have jurisdiction to hear this appeal. As the Commission explained, subsection 28(1.1) of the Planning Act specifically allows for an appeal from a municipal decision “to adopt an amendment to a bylaw”, but there is no provision providing a comparable right to appeal from a municipal decision to “approve” a proposed amendment after a first reading.^[2] The appellants had therefore appealed from the wrong decision; if they had wished to challenge the proposed amendment, they should have appealed from council’s decision to “adopt” it after second reading. The appeal was dismissed for lack of jurisdiction.
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2. The Commission only has the jurisdiction to hear appeals that are specifically assigned to it by legislation
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   In LA22-02, a dissatisfied resident appealed from decisions by the City of Summerside to issue a building permit and a development permit for a local development. The main issue was whether the Commission had jurisdiction to hear the appeal from the decision to issue the building permit. The appellant argued that the Commission’s jurisdiction to hear this appeal was grounded in clause 5(b) of the Island Regulatory and Appeals Commission Act, which states that one of the Commission’s “functions” is “to hear and decide matters relating to land use”.^[3] The Commission rejected this argument, explaining that it only has jurisdiction to hear appeals that are specifically assigned to it by legislation. The list of municipal decisions that can be appealed to the Commission is set out in subsection 28(1.1) of the Planning Act.^[4] Decisions relating to building permits do not appear on this list and therefore cannot be appealed to the Commission.^[5] The Commission directed that an oral hearing take place solely on the grounds of appeal relating to the development permit.
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3. The Commission has no jurisdiction over claims “grounded in nuisance”
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   In LA22-03, the appellant appealed from a decision by the Minister of Agriculture and Land (“Minister”) to approve a change of use for a nearby property. The notice of appeal did not allege that the Minister’s decision was undermined by a defect in procedure or by a deficiency in relation to sound planning principles. Instead, the appellant’s grounds of appeal related entirely to the noise, odours, vibrations and waste allegedly emanating from the ongoing use of the subject property.  In terms of a remedy, the appellant requested that the property owner be directed to construct a berm and to cease all outside work on the property. The Commission concluded that the appellant’s grounds of appeal were really “grounded in nuisance” and that claims grounded in nuisance fall outside the Commission’s statutory jurisdiction. The Commission explained that the Supreme Court of Prince Edward Island is the “proper forum” for a person seeking relief from nuisance. For this reason, the appeal was dismissed.
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4. When a notice of appeal is filed with the Commission under the Planning Act, the Commission determines the parties to the appeal
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   In LA22-04, a dissatisfied resident filed a notice of appeal with the Commission seeking to quash a decision by the City of Charlottetown (“Charlottetown”) to amend its Zoning & Development Bylaw. The appellant filed a motion arguing that the developer who had applied for the rezoning did not have status to participate in the appeal before the Commission. The appellant’s argument was based on the fact that the developer was not named in the notice of appeal or in Charlottetown’s reply to the notice of appeal. This argument was rejected. The Commission explained that, when a notice of appeal is filed with the Commission under the Planning Act, the Commission determines the parties to the appeal. It is the usual practice of the Commission to accord party status to any developer who was a party to the underlying decision being appealed. In the present case, the Commission reviewed the notice of appeal from the appellant and followed its usual practice by naming the developer as a party to the appeal. For that reason, the developer had status to participate. The appellant’s motion was dismissed.
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5. The Commission may examine “all of the surrounding circumstances” to determine whether a permit is a “development permit”
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   In LA22-06, a dissatisfied resident appealed from a decision by the City of Charlottetown (“Charlottetown”) to issue permits for the foundations of three townhouses. A key issue before the Commission was to determine whether these permits were properly classified as “development permits” or as “building permits”. This was significant because decisions relating to development permits are appealable to the Commission but decisions relating to building permits are not. In this case, difficulty arose from the fact that Charlottetown uses the same application form, and issues the same “permit”, for both types of permit. In light of this difficulty, the Commission explained that it was necessary to refer to “all of the surrounding circumstances” to determine how to classify the permits. In this case, the resolution authorizing the permits was centrally important to determining their true nature. The Commission found, based on its examination of this resolution, that the permits were properly classified as building permits. For this reason, the Commission concluded that it did not have jurisdiction to hear the appeal. The appeal was dismissed.
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6. In assessing an application, a municipality may be required to follow the procedure set out in public documents
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   In LA22-07, a developer appealed from a decision by the Town of Stratford (“Stratford”) to deny an application to rezone three parcels of land. The main issue before the Commission was whether Stratford had breached the duty of procedural fairness that it owed the developer in assessing the application for rezoning. Stratford had published a notice soliciting input from the public about the application for rezoning. The notice included a deadline for receiving submissions from the public. Approximately two weeks after this deadline had passed, however, Stratford council received a presentation from a member of the public about the proposed rezoning. On appeal to the Commission, the developer argued that Stratford had breached the rules of procedural fairness by hearing this presentation after the deadline. The Commission agreed with this argument. It explained that the conduct of Stratford in publishing the deadline gave rise to a legitimate expectation on the part of the developer that the deadline would be followed. The Commission allowed the appeal and, after assessing the merits of the application for rezoning, ordered that the properties be rezoned in accordance with the conditions that were recommended to council by the Town’s Planner and Planning Committee.
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7. On questions of procedural fairness, municipalities earn deference from the Commission by adhering to their own bylaws
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   In LA22-09, a dissatisfied resident appealed from a decision by the City of Summerside (“Summerside”) to grant a development permit for a number of row houses. The appellant’s main argument was that the process leading to the issuance of the development permit violated her right to procedural fairness. The appellant argued, in particular, that Summerside had failed to notify the public and nearby residents that the application for the development permit was under consideration. The Commission did not accept this argument. The Commission explained that the provisions of the relevant bylaw did not actually require Summerside to notify the public or nearby residents about the application for the development permit. This was a “legislative choice” by Summerside that “must be respected by the Commission”. If the appellant “question[ed] the wisdom” of this choice, the appropriate recourse was to lobby Summerside to amend its bylaw. The appeal was dismissed.
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8. Municipalities earn deference from the Commission by making decisions based on objective evidence from planning professionals
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   In LA22-10, a resident appealed from a decision by the City of Charlottetown (“Charlottetown”) to approve a site-specific exemption to its Zoning & Development Bylaw. The main question before the Commission was whether the decision under appeal was based on sound planning principles. Charlottetown and the appellant each called planning experts to give evidence. The experts called by Charlottetown gave “objective evidence” that the decision to approve the rezoning was based on sound planning principles. The expert called by the appellant, in contrast, gave evidence suggesting that the development “could be better” with “minor tweaks”. The Commission concluded that this apparent disagreement on the “suitability” of the proposed development did not suffice to demonstrate that Charlottetown had failed to follow sound planning principles. The Commission explained that it will “generally be reluctant” to interfere with a decision on the basis that it is not consistent with sound planning principles where there is “objective evidence” from planning professionals indicating that the decision is indeed consistent with those principles. The appeal was dismissed.
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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. When that statistical reality is considered in light of the accessible right of appeal granted by the Planning Act, it signals that the provincial land use planning system is working and that the decisions made by our provincial and municipal decision-makers are generally accepted. The Commission, for its part, exercises an oversight function that searches for legal errors and procedural defects. Its decisions therefore 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 also 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 contact a member of our Municipal Group.

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[1] Outside the boundaries of incorporated municipalities, planning-related decisions are made by delegates of the Minister of Agriculture and Land.
[2] R.S.P.E.I. 1988, c. P-8.
[3] R.S.P.E.I. 1988, c. I-11.
[4] R.S.P.E.I. 1988, c. P-8.
[5] Under the Building Codes Act, R.S.P.E.I. 1988, c. B-5.1, a person who is aggrieved by a decision relating to an application for a building permit may request a review by the Chief Building Official.