Land use planning in Prince Edward Island – the year in review

By 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 2024, the Commission released five 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.

I. Commission reviews application of bylaws

In LA24-02, the appellant appealed from a decision by the Rural Municipality of Linkletter to issue a development permit to “repair and install” a pre-existing fence. The appellant’s primary ground of appeal was that the fence was constructed too close to her property line and would therefore create a tree-damaging wind tunnel. The Commission rejected this argument. As the Commission explained, the appellant’s frustrations were understandable, but the Commission’s role on appeal is to consider whether the Municipality followed the proper procedure and “reasonably” applied its bylaws. In this case, the Commission was satisfied that the decision to issue the permit conformed to the applicable bylaw provisions. For this reason, the Commission dismissed the appeal.

II. Conditional permit ensures subdivision conditions will be satisfied

In LA24-03, the appellant appealed from a decision by the Minister of Housing, Land and Communities to grant a conditional development permit to construct a dwelling in a subdivision that had been approved, subject to certain conditions, in 2004. On appeal to the Commission, the appellants argued that the conditional development permit should not have been granted because the conditions of subdivision approval remained partly unsatisfied. The Commission rejected this argument. As the Commission explained, the conditions attached to the permit were preconditions to development that mirrored the unsatisfied conditions of subdivision approval. For this reason, the conditions attached to the permit will effectively serve to ensure that no development takes place until the unsatisfied subdivision conditions are fulfilled. The Commission dismissed the appeal.

III. Town not obligated to address fire safety concerns at development permit stage

In LA24-04, the appellants appealed from a decision by the Town of Three Rivers to issue a development permit to construct an apartment building with a major variance allowing for an additional 4.8 feet of building height. On appeal to the Commission, the appellants argued that the height variance was inconsistent with the Official Plan and Zoning Bylaw because the local fire department did not have the equipment necessary to reach the highest point of the proposed development.  The Commission rejected this argument. As the Commission explained, the Town was not obligated to address concerns relating to fire safety at the development permit stage. Those concerns would be addressed by the Minister of Housing, Land and Communities when determining whether to issue a building permit. For this reason, the appellant’s fire safety concerns were premature. The appeal was dismissed.

IV. The Commission will only sparingly exercise its discretion to review its own orders

In LA24-09 and LA24-10, the applicants requested that the Commission review planning orders that had previously been issued by the Commission. The Commission denied both requests. The Commission explained that, although it does have the authority to review its own orders, it will do so only “sparingly”. The applicant for a review bears the onus of demonstrating that the case for a review exists. The applicant can meet this onus only by demonstrating that a review is needed to correct a material error of the Commission or “to meet changed circumstances.” In the matters at hand, the Commission dismissed both requests for review because the applicants failed to discharge this onus.

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., Curtis Doyle, and Hilary Newman.

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