Consultation policies of Dept of Environment and Dept of Transportation?

Question stemming from the Maritime Electric new substation and power transmission line on Smith Road / Millvale Road / St. Mary’s Road: “Dept of Environment and Dept of Transportation are the departments involved – what are their consultation policies? Do you think it matters whether these projects are in incorporated or unincorporated areas?”

Resolution (in progress)

The PEI Planning Act (Chapter P-8) is the main legislation that governs how the PEI government deals with land planning.  Of course, it is recommended that it is read in its entirety to fully understand, but below are some relevant excerpts I have pulled out.

Role of Cabinet

This summarizes the responsibility of the government with respect to land planning:

7.(1)(c) make regulations establishing minimum development standards respecting (i) public health and safety, (ii) protection of the natural environment, (iii) landscape features.

Modification of official plan and bylaws to conform with regulations

This summarizes the responsibility of a municipality – note that it includes both official plan and bylaws:

7.(2) Where regulations have been made pursuant to clause (1)(c) or section 8.1, the council of a municipality with an official plan or bylaws made under this Act shall, within one hundred and twenty days of the date of publication of the regulations in the Gazette, make such amendments to its official plan or bylaws as are necessary to ensure that any requirements imposed thereby are not less stringent than those imposed by the comparable provision of the regulations

Provincial planning regulations

This is the main section that outlines PEI government responsibility for provincial planning regulations – i.e. within unincorporated areas:

8.(1) The Lieutenant Governor in Council may make provincial planning regulations applicable to any area except a municipality with an official plan and bylaws

General

8.(1) (a) with respect to planning and land use matters affecting the general welfare, health, safety and convenience of persons in any area or municipality;

Areas / Zoning

8.(1) (c) […]

• (ii) prescribing permitted uses of land and structures within zones, and
• (iii)  establishing and regulating areas as conservation zones for the purpose of preserving therein objects of beauty, fossil remains, other objects, animate and inanimate, of aesthetic, educational or scientific interest, or for the purpose of preserving any unusual combination of elements of the natural environment having educational, historic or scientific interest,
• (iv) establishing and regulating areas as environmentally sensitive areas

Permits

I believe this is where the government has the mandate to specify that a public notification and/or consultation must occur, the ability to make a customized agreement with a developer (e.g. Maritime Electric):

8.(1) (g)  with respect to the use of permits and in particular

• (i) requiring the use of permits for subdivision and development,
• (ii) setting the terms and conditions under which permits may be issued, refused, suspended, reinstated and revoked,
• (iii) providing penalties for failure to obtain permits,
• (iv) providing methods, sanctions and procedures for ensuring compliance with the terms and conditions of permits,
• (v) empowering and governing development agreements between the Minister and a developer,
• (vi) prescribing fees for permits,
• (vii) providing for and authorizing the lawful inspection and entry therein of properties that are the subject of permits;

Environment Protection

Here is where compliance with the Environmental Protection Act is brought in as a mandatory condition.

8.(1) (h) with respect to environmental protection and in particular

• (i) establishing as a precondition to issue of a permit that the provisions of the Environmental Protection Act R.S.P.E.I. 1988, Cap. E-9 and the regulations thereunder be complied with,
• (ii) that failure to comply be grounds for refusal or revocation of permits;

Scenic Heritage Roads / Access to Highways

This is where the Roads Act is referred to for governing heritage roads, and the limitations in place there.  I believe it also covers that construction of new roads that might be required to maintain power lines installed “cross-country”.

8.(1) (j)  with respect to access to streets and highways and in particular, subject to the provisions of the Roads Act R.S.P.E.I. 1988, Cap. R- 15,

• (i) regulating access roads and lanes and driveways having access to a street or highway in accordance with the laws of the province,
• (ii) requiring a permit before the construction of such roads, lanes and driveways,
• (iii) imposing limitations or conditions on a permit;

Land Identification Program

This recognizes that a land identification agreement may be put in place to specify land as non-commercial and/or non-industrial by the government, to prevent development of the land, and whatever other stipulations are in a given land identification agreement.

8.(1) (p) with respect to a land identification program to prevent commercial or industrial development or subdivision of identified land and respecting the particulars of a land identification agreement;

Enforcement

This gives the Minister direct power to do ensure compliance with the Planning Act and spend money to do so.  This might be interpreted as saying the Minister has the power to force Maritime Electric to adjust the power line route if it doesn’t comply with the Planning Act, and also make them pay for it.

8.(1) (q) with respect to the enforcement of this Act, regulations and bylaws and in particular

• (i) empowering the Minister to take such remedial or other action as may be necessary to ensure compliance with this Act and the regulations, including the taking of an action required to be taken by a permittee or any other person,
• (ii) empowering the Minister to incur such costs as are necessary in taking such remedial or other action and to charge them to the permittee or other person,

Regulations, Special Planning Areas

This seems to give the government the ability to define a “special planning area” within a municipality to suspend its bylaws.  I’m trying to think of a practical example of this – perhaps a park, or the Lieutenant Governor’s residence at Fanning Bank.

8.1 The Lieutenant Governor in Council may make regulations with respect to special planning areas and, in particular

• (a) establishing the special planning areas;
• (b) prescribing their geographical boundaries;
• (c) defining the objectives, purpose and function of the special planning areas;
• (d) regulating development in special planning areas;
• (e) superseding or suspending the application of the bylaws of a municipality or any part of such bylaws within a special planning area and substituting therefor regulations under this Act.. 1991, c.30, s.2 {eff.} May 16/91; 1994, c.46, s.2 {eff.}July. 14/94.

Municipal Planning

I believe that Section 9.(1) basically says that a municipality must have an official plan before they can take over planning for their area from the province.  However, it is interesting to note that there is the ability to have an Interim Planning Policy as defined in 10.(1) for a municipality until the official plan is in place.

Interim Planning Policy

10. (1) A planning board may recommend to the council the adoption of an interim planning policy containing limitations, restrictions and prohibitions on land use pending the completion of an official plan.

(2) The council or the Minister, as the case may be, may refuse to hear applications for subdivision approvals, development permits or building permits from the date of receipt by the council of the proposed interim planning policy until the bylaws giving effect to the policy come into force.

(3) The council shall, before adopting an interim planning policy hold at least one public meeting, notice of which is published on at least two occasions in a newspaper circulating in the area, not less than seven days before the meeting, in order to give an opportunity to residents and other interested persons to make representation.

(4) The council shall maintain a record of the proceedings at the public meeting and, in particular, of the objections and representations made by the residents and other interested persons. (5) Within sixty days after the public meeting the council may, with the approval of the Minister, make bylaws to give effect to the interim planning policy. (5.1) Where a bylaw has been made under subsection

(5), regulations made under subsection 8(1) are suspended while the bylaw is in effect.

(6) The bylaws shall remain in effect for a period of six months but may be extended for a further period not exceeding six months.

(7) Bylaws giving effect to an interim planning policy do not apply in respect of any development for which application is made prior to the date of the receipt by the council of the proposed interim planning policy from the planning board. 1988, c.4, s.10; 1995, c.29, s.5 {eff.} Oct. 14/95.

References