Docket: LA01003
Order LA01-05
IN THE MATTER of an appeal by Shawn McGee against a decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated March 28, 2001.
BEFORE THE COMMISSION
on Friday, the 31st day of August, 2001
Maurice Rodgerson, Commissioner
Arthur Hudson, Commissioner
Kathy Kennedy, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses
1. For the Appellant
Shawn McGee
2. For the Respondent
Brenda MacDonald
Donald McKearney
Alton Glenn
Reasons for Order
1. Introduction
This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) by Shawn McGee (the Appellant) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 (the Planning Act).
According to the Notice of Appeal (Exhibit A2) dated April 11, 2001 and other evidence before the Commission, the Appellant is appealing the decision of the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (the Respondent), dated March 28, 2001, to deny him a sign permit for G. Willikers Ltd. situate on parcel number 232140 (the subject property) located in Stanley Bridge.
Following the receipt of the Notice of Appeal, Commission staff identified a potential preliminary matter concerning the issue of jurisdiction and invited the parties to file written submissions. Submissions were received from the Respondent on May 17, 2001 (Exhibit R1) and from the Appellant on May 23, 2001 (Exhibit A1).
After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear argument on the preliminary issue of jurisdiction commencing on June 27, 2001. During the hearing, the Appellant requested an adjournment in order to have an opportunity to fully review a very recently disclosed document. The Respondent was not opposed to that request. The hearing was postponed and concluded on July 5, 2001 after hearing the submissions from the parties.
This decision relates to the preliminary issue of jurisdiction only.2. Discussion
The Appellant contends that the Commission does have the jurisdiction to hear an appeal, under section 28 of the Planning Act, of a decision made by the Respondent under its Signage Bylaws 1996 (the Signage Bylaw). The Appellant submitted the following points in argument:
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The Appellant sat on the Respondent's Council from 1993 until 1995. During this time, the draft Signage Bylaw was discussed and reviewed. The intention at the time was that a decision made under the Signage Bylaw could be appealed to the Commission, and this intention was clearly expressed in section 8.0 of the Signage Bylaw. Further, the Respondent's staff had previously informed him that he could appeal the Respondent's decision to the Commission.
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There is some intermix between the Respondent's Zoning & Subdivision Control (Development) Bylaw (the Development Bylaw) and the Signage Bylaw. For example, clause 4.50 (vi) of the Development Bylaw deals with signage in that it requires signs used for business use in a residential zone to be restricted to a maximum of 400 square inches in total and requires that the sign not be internally lighted.
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While signage control is specifically provided for in the Municipalities Act, R.S.P.E.I. 1988, Cap. M-13 (the Municipalities Act), signage control also falls under the scope of the Planning Act and thus the appeal provisions under section 28 of the Planning Act apply.
For these reasons, the Appellant submits that the Commission does have the jurisdiction to hear this appeal under section 28 of the Planning Act.
The Respondent takes the position that the Commission does not have jurisdiction to hear an appeal of the Signage Bylaw. In fact, correspondence from the Respondent (Exhibit R7) states that “… Irac [sic] does not have jurisdiction to hear and deal with the matter of jurisdiction…” The Respondent submitted the following points in argument:
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The authority for the Respondent to enact the Signage Bylaw is derived exclusively from Order in Council EC595/90, which the Lieutenant Governor in Council ordered pursuant to section 8.1 of the Municipalities Act. There are no appeal provisions in the Municipalities Act.
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The power to deal with signage issues and enact a signage bylaw is intended to be a matter separate from the scope of the Planning Act and therefore the Planning Act, and its appeal provisions, do not apply.
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While the Respondent's Administrator did inform the Appellant that he could appeal, this was based on an appeal provision that the text of the Signage Bylaw included at the time the Appellant filed his appeal. However, the Respondent cannot confer upon the Commission the jurisdiction to hear appeals of the Signage Bylaw. The Respondent recently amended various sections of the Signage Bylaw and one of these amendments removed section 8.0, the appeal provision. These amendments are currently awaiting the approval of the Minister of Community and Cultural Affairs.
3. Findings
The Commission's Obligation to Determine Jurisdiction
Before dealing with the main issue as to whether or not the Commission has the jurisdiction to hear this appeal, the Commission wishes to address an argument presented by the Respondent.
The Respondent, in a letter dated June 25, 2001 to Commission staff (Exhibit R7), stated that the Commission does not have the “… jurisdiction to hear and deal with the matter of jurisdiction…” While the Respondent did not pursue this matter in oral argument at the hearing, this written argument was not withdrawn.
In her authoritative legal text Administrative Law in Canada, Toronto, Butterworths, 1992, Sara Blake states at page 103:
A tribunal has not only authority but also a duty to determine the scope of its powers. It cannot refuse to act because it is not sure whether it has the power it is called on to exercise. It must decide whether it has that power.
It is well-established law that a quasi-judicial body, such as the Commission, has the right and indeed the obligation to deal with the matter of jurisdiction.
The Commission considers jurisdictional issues on a case-by-case basis following receipt of a Notice of Appeal. In some cases, the Commission will request written submissions from the parties on the issue of jurisdiction. The Commission may then proceed to determine whether it has jurisdiction, with or without a hearing on the jurisdictional issue.
The Commission is satisfied that it has not only the authority to hear and deal with matters of jurisdiction, but also an obligation to do so.
That established, the Commission turns its attention to the specific issue of jurisdiction regarding this appeal.
The Jurisdictional Issue
The issue before the Commission is whether it has the jurisdiction to hear an appeal of a decision made by the Respondent to deny the Appellant a signage permit pursuant to its Signage Bylaw. No evidence was presented to suggest that the Appellant has a right to appeal under the Municipalities Act. Ultimately, the issue comes down to whether the Respondent's Signage Bylaw is made pursuant to the powers conferred by the Planning Act. If the answer to this question is in the affirmative, then the Respondent's Signage Bylaw is subject to the appeal provisions of section 28 of the Planning Act, and the Commission has the jurisdiction to hear this appeal.
Although the text of the Signage Bylaw (at the time when the Appellant filed his appeal) includes an appeal provision set out in section 8.0 of said Bylaw, this section is not of itself determinative of the jurisdictional issue.
Section 8.0 of the Signage Bylaw reads as follows:
8.0 Appeals
Any person aggrieved, sign owner, possessor or applicant who alleges that the Council acted erroneously in enforcing this law, or any sign owner, possessor or applicant who believes they are entitled to a variance from the enforcement of this law, may appeal the decision of the Council to the Island Regulatory and Appeals Commission. Such appeal shall be filed within twenty one (21) days of the official notice of decision.
While it may be argued that the very presence of section 8.0 suggests that the Respondent at one time believed that its Signage Bylaw was subject to an appeal to the Commission, it is important to realize that a municipality cannot, by itself, grant powers to the Commission. The Commission was created by, and given its powers by, the Legislature of the Province of Prince Edward Island. A bylaw only applies within the jurisdiction of the municipality that enacted it; thus a municipal bylaw cannot impose a responsibility on the Commission.
Before reaching its decision, the Commission carefully considered arguments for and against a finding that it has jurisdiction to hear this appeal. While both the Appellant and the Respondent presented effective arguments, the Commission has not had the benefit of detailed legal submissions from the parties. As this is a difficult matter to determine, the Commission feels it appropriate to outline points considered for and against a finding of jurisdiction.
Arguments that could support a finding of “No Jurisdiction”
A. “Structure”
Under the Planning Act “development” is defined in section 1. (d):
1. (d) “development means the carrying out of any building operation, including excavation in preparation for building, on, over or under land, or the making of a material change in the use or the intensity of the use of any land, buildings or premises, and includes the placing of structures on, over or under land;
This definition refers to “structure”. This begs the question: is a sign a structure and thus by definition a development? If a sign were a development, would the Planning Act then apply to the Signage Bylaw?
While the Planning Act Subdivision and Development Regulations define “structure”, these regulations apply in the absence of an official plan. The Respondent has an Official Plan and bylaws made pursuant to that Official Plan. The Signage Bylaw does not define “structure”. However, the Respondent's Development Bylaw does define “structure” under section 2.77 as:
2.77 “Structure” – means any construction including a building fixed to, supported by or sunk into land or water, but excludes concrete and asphalt paving or similar surfacing and fencing and includes a swimming pool.
While this definition is perhaps a little difficult to follow, one reasonable interpretation of the section is that:
1. A structure includes a building and a swimming pool.
2. A structure does NOT include concrete and asphalt paving or similar surfacing and also does NOT include fencing.
Signs or signage are not referred to – neither as an included nor excluded item. An argument could be made that a structure includes buildings, swimming pools and similar classes of objects and does NOT include paving (asphalt and concrete) or similar surfacing and fencing or a similar class of objects. Using this approach, signs could be considered to fall into a similar class of objects as fences. It could be argued that a sign is more similar to a fence than a building or swimming pool, and thus a sign is not to be included in the meaning of the word “structure”. If a sign is not a “structure”, it could be further argued that it is not a “development” as defined in the Planning Act. Therefore, it would follow that the Planning Act does not apply.
B. Planning Act subsection 8. (1)
In the Signage Bylaw, it is stated at the end of section 1. Purpose:
This bylaw is adopted pursuant to Part VIII, s. 30(v) of the Municipality [sic] Act, R.S.P.E.I. 1988, Cap M-13.
However, the Commission notes that section 30 of the Municipalities Act applies to a town or village listed under Schedule 1. Neither the Respondent, nor the communities which together form the Respondent, are listed in Schedule 1 of the Municipalities Act.
The Municipalities Act makes a specific provision for enabling powers for a resort municipality. Section 32 of the Municipalities Act reads as follows:
32. A municipality established under section 8, 8.1 or 9 as a town or community may provide such services as may be specified in the order incorporating the municipality.
Section 8.1 provides for the incorporation of a resort municipality by the Lieutenant Governor in Council.
Referring to sections 4 and 5 of Order in Council EC595/90, August 30, 1990 (Exhibit R6), the Lieutenant Governor in Council, pursuant to section 8.1 of the Municipalities Act, designated the Respondent the status of a community and authorized some 26 services that may be provided by the community. This includes clause “(xxii) signage control”.
Subsection 8. (1) of the Planning Act reads in part:
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
(a) with respect to planning and land use matters affecting the general welfare, health, safety and convenience of persons in any area or municipality;
Subsection 20. (1) of the Planning Act reads as follows:
20. (1) The powers of a council to make bylaws includes the power to make bylaws applicable within the municipality with respect to all of the matters set out in clauses 8(a) to (q) except clauses (i), (l) and (p) as if
(a) references to the Crown were references to the municipality;
(b) references to the Minister were references to the council.
The combination of subsection 20. (1) and subsection 8. (1) gives a municipality the power to make bylaws applicable within the municipality with respect to the matters set out in clauses 8. (1)(a) to (q) except for clauses (i), (l) and (p). Clause 8. (1)(a) appears to be a general provision with respect to planning and land use matters affecting the general welfare, health, safety and convenience of persons in any area or municipality. The remaining clauses are quite specific, none of which refer to signs or signage.
The question then becomes, does signage control fall under the general provision of “planning and land use matters affecting the general welfare, health, safety and convenience of persons in any area or municipality”? Given that general welfare and convenience are rather inclusive terms, the question may be expressed more succinctly: Do planning and land use matters include signage control?
While many planning and land use matters are referred to in the Planning Act and the various regulations under said Act, signs or signage control are not mentioned. Given that there are no references in the Planning Act or any of its regulations to signage control or signs, it may be argued that signs or signage were not contemplated by the Legislature as part of “planning and land use matters”. By contrast, the Municipalities Act clearly refers to signage control. Therefore, as the Planning Act does not refer specifically to signs or signage, it is reasonable to argue that the Commission has no jurisdiction to hear an appeal of a sign bylaw.
Arguments that could support a finding of “Jurisdiction”
A. “Structure”
Section 2.77 of the Development Bylaw does not specifically refer to signs or signage. However, section 2.77 does define structure as including “… any construction…” and a sign could certainly be viewed as a construction. Since the Development Bylaw is otherwise silent as to whether a sign is a structure, the definition of structure contained in section 1. (v) of the Planning Act Subdivision and Development Regulations may provide some guidance:
1. (v) “structure” means any construction fixed to, or sunk into land or water, but excludes: concrete and asphalt paving or similar surfacing, sewage disposal systems, water wells, fences, utility poles, clothes line poles, or flag poles or recreational equipment accessory to a dwelling unit;
A development is defined under clause 1. (d) of the Planning Act:
1. (d) “development” means the carrying out of any building operation, including excavation in preparation for building on, over or under land, or the making of a material change in the use or the intensity of the use of any land, buildings or premises, and includes the placing of structures on, over or under land;
The above definitions do not exclude signs; therefore, given the definition of "structure", it is reasonable that a sign would therefore be included as a “development” under the Planning Act, thus leading to the conclusion that the Planning Act could include signage.
B. Planning Act subsection 8. (1)
Clause 8. (1)(a) of the Planning Act is a general provision with respect to planning and land use matters affecting the general welfare, health, safety and convenience of persons in any area or municipality. The scope of this clause is broad and inclusive. It appears to refer to planning and land use matters in a global sense and should not be constrained by whether or not a matter is actually referred to in the Planning Act or its regulations. Logic suggests that this clause is intended to address those areas of planning and land use matters not specifically addressed in subsequent clauses. If clause 8. (1)(a) were intended to apply only to planning and land use matters listed elsewhere in the Planning Act or its various regulations, one would expect that a phrase containing words to a similar effect would have been incorporated into this clause.
In reviewing whether the Planning Act is applicable to the Respondent's Signage Bylaw, it is helpful to consider the stated objects set out under section 2 of the Planning Act:
2. The objects of this Act are
(a) to
provide for efficient planning at the provincial and municipal level;
(b) to encourage
the orderly and efficient development of public services;
(c) to protect
the unique environment of the province;
(d) to provide
effective means for resolving conflicts respecting land use;
(e) to provide the opportunity for public participation in the planning
process.
Section 1 of the Signage Bylaw sets out its purpose:
1. Purpose
To regulate the location and use of signage having due regard to:
i) the promotion of the health, safety, aesthetics and general welfare of the Municipality;
ii) the preservation of amenities and natural beauty;
iii) the promotion of good quality signage in the natural environment and the built environment; and
iv) the effective implementation of the Official Plan and development bylaws in the best interest of the community as a whole.To preserve or enhance the unique character of the Resort Municipality by requiring new and replacement signage which is:
- creative and distinctive within the framework of the bylaw;
- compatible with the surroundings;
- appropriate to the type of activity to which it pertains;
- expressive of the identity of individual proprietors or of the community as a whole; and
- appropriately sized in its context, so as to be easily legible.This bylaw is adopted pursuant to Part VIII, s. 30(v) of the Municipality Act [sic], R.S.P.E.I. 1988, Cap. M-13.
As noted earlier, the reference to s. 30(v) of the Municipalities Act is in error because the Respondent is not listed in Schedule 1 of that Act.
It appears that there is substantial common ground between the objects of the Planning Act and the purpose of the Signage Bylaw. The protection of the unique environment of the province dovetails nicely with the preservation of amenities and natural beauty. The Signage Bylaw also seeks to address the promotion of good quality signage in the natural environment and the built environment.
It also appears that there is a harmony of purpose between clause 8. (1)(a) of the Planning Act and the purposes of the Signage Bylaw as they both address general welfare, health and safety.
However, what is most interesting is that the Signage Bylaw includes as a purpose “To regulate the location and use of signage having due regard to … iv) the effective implementation of the Official Plan and development bylaws in the best interest of the community as a whole.” Indeed, the Signage Bylaw is referred to in the Official Plan in both section 2.12 Visual Image/Character and section 4.5 Image/Character Policy PV-7: Signage.
A reading of the Signage Bylaw in its entirety suggests that it is an instrument by which the Respondent hopes to achieve a better community. As such, the Signage Bylaw can be fairly and reasonably interpreted as a planning document.
The Commission's Decision
Upon a review of the submissions presented by the parties, the applicable law and after canvassing possible arguments for and against a finding that the Commission has the jurisdiction to hear this appeal, the Commission finds that it has the jurisdiction to hear this appeal for the reasons that follow.
The Commission finds that the Respondent's Signage Bylaw is a planning document that does deal with planning and land use matters that affect the general welfare of persons in the Respondent's community. A major purpose of this Signage Bylaw is to carry out part of the mandate of the Respondent's Official Plan. While signage control is clearly granted to the Respondent under Order in Council EC595/90, this particular signage bylaw also impacts upon planning and land use matters in the Respondent's community and is thereby also authorized by clause 8. (1)(a) of the Planning Act. Given the manner in which the Signage Bylaw is drafted and its specific linkage to development, the Commission believes that it is a comprehensive signage bylaw that serves as a planning tool and assists the Respondent in fulfilling the objectives and policies of its Official Plan.
As this signage bylaw concerns planning and land use matters, it falls under the scope of the Respondent's Official Plan and the Planning Act, and as such, the appeal provisions under section 28 of the Planning Act apply.
The Commission cautions that this decision applies only to the particular signage bylaw that is the subject of this appeal. This decision should not be interpreted or construed as standing for the proposition that all signage bylaws are necessarily planning and land use matters. In order to determine whether a signage bylaw is within the scope of clause 8. (1)(a) of the Planning Act, it is necessary to examine the particular bylaw in question. A communities' official plan may provide a useful context to assist in this determination.
The Commission also advises that this decision should not be interpreted or construed as standing for the proposition that it is essential for a community to have an official plan as a prerequisite to a signage bylaw. While a signage bylaw may be found to be authorized under clause 8. (1)(a) of the Planning Act, this results in a dual authority for the bylaw under both the Planning Act and the Municipalities Act. To the extent that there is no official plan in a particular community, authority for a signage bylaw may very well still exist under the Municipalities Act and, where applicable, an Order in Council pursuant to said Act.
The Commission reminds the parties that, while it has determined that it has the jurisdiction to hear this appeal, the appeal provisions under section 28 of the Planning Act apply. In particular, subsection 28. (1) is worthy of special note:
The Commission will, therefore, hear, consider and decide the issues of this present case in accordance with the requirements and objects of the Signage Bylaw and the Planning Act. This matter will now proceed to a hearing on the substantive matters of the appeal.28. (1) Subject to subsections (2), (3) and (4), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act may, within twenty-one days of the decision appeal to the Commission. (emphasis added)
4. Disposition
An Order on the preliminary matter of jurisdiction will therefore by issued.
Order
WHEREAS Shawn McGee has appealed a decision made by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated March 28, 2001;
AND WHEREAS the Resort Municipality raised a preliminary matter and questioned whether the Commission has the jurisdiction to hear this appeal;
AND WHEREAS hearings were held on June 27, 2001 and July
5, 2001 to hear argument on this preliminary matter;
AND WHEREAS the Commission has issued its findings in this matter in accordance with the Reasons for Order issued with this Order;
NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act
IT IS ORDERED THAT
1. The Commission has the jurisdiction to hear this appeal;
2. The Commission will proceed to hear the substantive matters of this appeal forthwith.
DATED at Charlottetown, Prince Edward Island, this 31st day of August, 2001.
BY THE COMMISSION:
Maurice Rodgerson, Commissioner
Arthur Hudson, Commissioner
Kathy Kennedy, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.
Sections 13.(1) and 13(2) of the Act provide as follows:
(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.