Acts and Regulations

C-12 - Community Planning Act

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Full text
Repealed on 1 January 2018
CHAPTER C-12
Community Planning Act
Repealed: 2017, c.19, s.153
INTERPRETATION
Definitions
1In this Act
“abut” includes having access thereto directly;(donner sur)
“advisory committee” means a planning advisory committee established under section 12;(comité consultatif)
“area plan” Repealed: 1994, c.95, s.1
“basic planning statement” means a basic planning statement referred to in section 29;(déclaration des perspectives d’urbanisme)
“Board” means the Assessment and Planning Appeal Board established under the Assessment and Planning Appeal Board Act;(Commission)
“building inspector” means (inspecteur des constructions)
(a) a person who has the primary responsibility to a regional service commission for the enforcement of municipal by-laws or other provincial laws with respect to building and construction within the region, and
(b) a person appointed under subsection 74(3) or 190.077(3) of the Municipalities Act;
“commission” Repealed: 2012, c.44, s.4
“council” means the council of a city, town or village;(conseil)
“credit union” means a credit union as defined under the Credit Unions Act;(caisse populaire)
“development” means(aménagement)
(a) the erecting, placing, relocating, removing, demolishing, altering, repairing or replacing of a building or structure other than utility poles and wires, traffic control devices, pipelines defined in the Pipeline Act, 2005 except for buildings and structures remote from the pipeline used for management and administration or housing or storing of moveable equipment or statutory notices,
(b) where the purposes for which land, buildings and structures may be used are set out in a regional plan, municipal plan, rural plan, basic planning statement, development scheme, urban renewal scheme, zoning by-law or regulation, any change in the purpose for which any land, building or structure is used,
(c) any excavation of sand, gravel, clay, shale, limestone or other deposit for a development mentioned in paragraph (a) or for purposes of the sale or other commercial use of the material excavated, or
(d) the making of land by cutting or filling to a depth in excess of one metre except in the case of laying pipelines defined in the Pipeline Act, 2005;
“development officer” means(agent d’aménagement)
(a) with respect to a municipality that is providing its own land use planning service,
(i) the municipal planning director or municipal planning officer, where one has been appointed under subsection 16(1), or
(ii) the Director, where there are regional developments or, in the case of a village, where he or she is appointed as the development officer under paragraph 16(3)(a) or where paragraph 16(3)(b) applies,
(b) with respect to a rural community that is providing its own land use planning service,
(i) the rural community planning director or rural community planning officer, where one has been appointed under subsection 16(1.1), or
(ii) the Director, where there are regional developments, and
(c) with respect to a municipality, a rural community or an unincorporated area that is not providing its own land use planning service, the planning director as defined in the Regional Service Delivery Act;
“development scheme” means a development scheme described in section 32;(projet d’aménagement)
“Director” means the Provincial Planning Director appointed under section 4;(Directeur)
“district director” Repealed: 2012, c.44, s.4
“district officer” Repealed: 2012, c.44, s.4
“integrated survey area” means an integrated survey area constituted under the Surveys Act;(zone d’arpentage intégré)
“land for public purposes” means land, other than streets, for the recreational or other use or enjoyment of the general public, such as(terrain d’utilité publique)
(a) an access to a lake, river, stream, sea or other body of water,
(b) a beach or scenic area along the shore of a lake, river, stream, sea or other body of water,
(c) a conservation area,
(d) land adjoining a school, for joint recreational purposes,
(e) land for a community hall, public library, recreational use or other similar community facility,
(f) open space, to provide air and light, to afford a view to or from a development or to a lake, river, stream, sea or other body of water, or for other purposes,
(g) a park, green belt or buffer area dividing developments, parts of a highway or a development and a highway,
(h) a pedestrian way to a school, shopping center, recreational area or other facility,
(i) a protection area for a water course, stream, marsh, water supply lake or other body of water,
(j) a public park, playground or other recreational use,
(k) a visual feature, or
(l) a wooded area, slope area or a site giving view to a scenic area to provide diversity;
“Minister” means the Minister of Environment and Local Government and includes any person designated by the Minister to act on the Minister’s behalf;(Ministre)
“municipal plan” means a municipal development plan adopted under section 24;(plan municipal)
“non-conforming use” means a use of any land, building or structure, including that lawfully under construction or for which a building permit or a development and building permit to undertake construction is in effect, that is not permitted by an existing zoning by-law or an existing rural plan under subsection 27.2(1) or 77.2(1) or a proposed zoning by-law or a proposed rural plan under subsection 27.2(1) or 77.2(1) for which a resolution under section 71 has been adopted by the council or rural community council and remains effective, or by an existing rural plan or zoning regulation under section 77 or a proposed rural plan or zoning regulation under section 77 for which the first notice has been published under paragraph 68(1)(b) and six months has not elapsed since such publication, if such use existed on the day the by-law was enacted, the plan or regulation was made, the resolution was adopted or the notice was published;(usage non conforme)
“opaque linen” includes any substitute opaque material approved by the Minister;(toile opaque)
“planner” means an individual who is entitled to use the appellation MCIP or FCIP under the by-laws of the Canadian Institute of Planners or a planner as defined in the Regional Service Delivery Act;(urbaniste)
“Planning Committee” Repealed: 1994, c.95, s.1
“planning district” Repealed: 2012, c.44, s.4
“planning region” Repealed: 2012, c.44, s.4
“previous Act” means any Act respecting community planning or town planning at any time in force before the commencement of this Act;(ancienne loi)
“Province” means the Crown in Right of the Province of New Brunswick;(Province)
“provincial planning policy” means the provincial planning policy established by the Lieutenant-Governor in Council under subsection 4.1(1);(politique provinciale d’urbanisme)
“region” means a region as defined in the Regional Service Delivery Act;(région)
“regional development permit” Repealed: 1977, c.10, s.1
“regional development” means a development(aménagement régional)
(a) which is identified in a regional plan as being subject to approval in relation to standards described in the plan for such development, and
(b) for which approval is not required under section 81;
“regional plan” means a regional development plan adopted under subsection 18(5);(plan régional)
“regional service commission” means a regional service commission established under the Regional Service Delivery Act;(commission de services régionaux)
“registry office” means the registry office established under the Registry Act for the county in which any land affected is situated, and “registrar” means the registrar of such office;(bureau de l’enregistrement)
“rural community” means a rural community as defined in section 1 of the Municipalities Act;(communauté rurale)
“rural community clerk” means a rural community clerk appointed under subsection 190.077(2) of the Municipalities Act;(greffier de la communaute rurale)
“rural community committee” Repealed: 2005, c.7, s.12
“rural community council” means a rural community council as defined in section 1 of the Municipalities Act;(conseil d’une communauté rurale)
“rural plan” means a rural plan under subsection 27.2(1), 77(2.1) or 77.2(1), as the case may be;(plan rural)
“shopping centre” means any development of land, planned and controlled as a unit, having an area of at least six thousand square metres and containing retail stores, offices or service shops or other similar establishments in a unitary type building or buildings of at least fifteen hundred square metres in floor area;(centre commercial)
“street” means the entire width between the boundary lines of a street, road or highway;(rue)
“subdivide” means to divide a parcel of land into two or more parcels;(lotir)
“type 1 subdivision” means a subdivision of land that is not a type 2 subdivision;(lotissement de type 1)
“type 2 subdivision” means a subdivision of land that requires the development of(lotissement de type 2)
(a) one or more streets, or
(b) a form of access other than a street as may be approved by an advisory committee or regional service commission as being advisable for the development of the land;
“unincorporated area” means those areas of the Province not located within the boundaries of a city, town, village or rural community;(secteur non constitué en municipalité)
“urban renewal scheme” means an urban renewal scheme described in section 33;(projet de rénovation urbaine)
“use of land” includes the mining or excavation of sand, gravel, clay, shale, limestone or other deposits whether or not for the purpose of sale or other commercial use of the material so mined or excavated.(usage des terrains)
1972, c.7, s.1; 1974, c.6(Supp.), s.1; 1977, c.M-11.1, s.4; 1977, c.10, s.1; 1979, c.9, s.1; 1983, c.18, s.1; 1986, c.8, s.23; 1989, c.55, s.26; 1992, c.2, s.12; 1994, c.48, s.1; 1994, c.95, s.1; 1998, c.41, s.23; 1999, c.G-2.11, s.100; 1999, c.28, s.1; 2000, c.26, s.48; 2001, c.31, s.1; 2001, c.32, s.4; 2005, c.7, s.12; 2005, c.P-8.5, s.84; 2006, c.16, s.38; 2007, c.58, s.1; 2007, c.59, s.1; 2012, c.39, s.46; 2012, c.44, s.4
SCOPE
Purposes of Act
2The purpose of this Act is to provide for
(a) the adoption of regional development plans for the general development thereof;
(b) the coordination of community planning within the context of a regional plan, if any;
(c) with respect to unincorporated parts of the Province, the vesting in the Lieutenant-Governor in Council and in the Minister of planning authority and the vesting in the Minister of administrative authority in connection with such unincorporated parts;
(c.1) with respect to rural communities, the vesting in rural community councils of planning authority and the provision of administrative services to rural community councils for land use planning matters;
(c.2) the establishment of a provincial planning policy;
(d) the adoption, within the context of a regional plan, if any, of municipal plans and basic planning statements by municipalities and the adopting or making, within the context of a regional plan, if any, of rural plans by the Minister, village councils or rural community councils;
(e) the adoption of development schemes and urban renewal schemes by municipalities and rural communities;
(f) the establishment of planning advisory committees;
(g) Repealed: 2012, c.44, s.4
(h) the administration by development officers of regional plans, municipal plans, rural plans, basic planning statements and by-laws and regulations under this Act;
(i) the conferring of a power of variance, within defined limits, on regional service commissions, advisory committees and development officers or their delegates;
(j) Repealed: 2001, c.32, s.4
(k) by-laws with respect to zoning, subdivision, building, deferred widening and controlled access streets;
(l) the making of regulations with respect to planning for unincorporated areas; and
(m) administrative powers and procedures to accommodate administration, to implement regional plans, municipal plans, rural plans and basic planning statements and, where no plan or statement has been adopted or made, to provide a basis for amelioration of the physical environment.
1972, c.7, s.2; 1994, c.48, s.2; 1994, c.95, s.2; 1995, c.48, s.1; 2001, c.32, s.4; 2005, c.7, s.12; 2007, c.58, s.2; 2007, c.59, s.2; 2012, c.44, s.4
ADMINISTRATION
Administration of Act
3The Minister shall administer this Act and, except with respect to a power mentioned in section 77 or 91, may delegate his administrative powers and designate a person to act on his behalf in the enforcement of this Act or a regulation hereunder.
1972, c.7, s.3; 2012, c.44, s.4
Provincial Planning Director
4(1)The Lieutenant-Governor in Council shall appoint as an employee in the Department of Environment and Local Government a person to be known as the Provincial Planning Director, to whom the Civil Service Act shall apply.
4(2)In municipalities that are providing their own land use planning service, the Director is the development officer for the purposes of
(a) approving regional developments on land located in a municipality where no appointment has been made under subsection 16(1);
(b) administering a subdivision by-law and approving developments hereunder in any village that appoints him as the development officer under paragraph 16(3)(a); and
(c) administering a subdivision regulation hereunder in any village in which it is effective.
(d) Repealed: 1994, c.95, s.3
4(2.1)In rural communities that are providing their own land use planning service, the Director is the development officer for the purposes of
(a) approving regional developments on land located in a rural community where no appointment has been made under subsection 16(1.1);
(b) administering a subdivision by-law and approving developments in a rural community that appoints the Director as the development officer under paragraph 16(4)(a); and
(c) administering a subdivision regulation in a rural community in which it is effective.
4(3)The Director may
(a) delegate any administrative power conferred on him by or pursuant to this Act;
(b) provide technical planning assistance for councils, rural community councils, advisory committees and regional service commissions; and
(c) exercise and perform such powers and duties in relation to community planning as the Minister may assign to him.
1972, c.7, s.4; 1977, c.10, s.2; 1986, c.8, s.23; 1989, c.55, s.26; 1992, c.2, s.12; 1994, c.95, s.3; 1998, c.41, s.23; 2000, c.26, s.48; 2005, c.7, s.12; 2006, c.16, s.38; 2007, c.59, s.3; 2012, c.39, s.46; 2012, c.44, s.4
PROVINCIAL PLANNING POLICY
2007, c.58, s.3
Establishment of provincial planning policy
4.1(1)On the recommendation of the Minister, the Lieutenant-Governor in Council shall by regulation establish a provincial planning policy, which shall include the following:
(a) the principles upon which community planning and development in the Province are to be based;
(b) the provincial goals and priorities for community planning and development in the Province or areas of the Province;
(c) policy statements on matters related to community planning and development that are of provincial interest such as water quality and quantity, air quality, natural resources or any other matter related to the social, economic or environmental welfare of the Province; and
(d) any other matter that the Minister considers necessary for the implementation of the policies, goals and priorities set out in the regulation.
4.1(2)Before making a recommendation to establish or amend the provincial planning policy, the Minister shall consult with such persons and public bodies as the Minister considers appropriate.
4.1(3)A regional plan, municipal plan, rural plan, basic planning statement or a by-law or regulation under this Act that is enacted or adopted after the coming into force of the provincial planning policy shall conform with the provincial planning policy, and in the case of a conflict, the provincial planning policy prevails.
4.1(4)An amendment, modification or addition made to a regional plan, municipal plan, rural plan, basic planning statement or a by-law or regulation under this Act after the coming into force of the provincial planning policy shall conform with the provincial planning policy, and in the case of a conflict, the provincial planning policy prevails.
2007, c.58, s.3
PLANNING REGIONS AND
PLANNING DISTRICTS
Repealed: 2012, c.44, s.4
2012, c.44, s.4
Repealed
5Repealed: 2012, c.44, s.4
1972, c.7, s.5; 1994, c.48, s.3; 1995, c.48, s.2; 2005, c.7, s.12; 2012, c.44, s.4
DISTRICT COMMISSIONS
Repealed: 2012, c.44, s.4
2012, c.44, s.4
Repealed
6Repealed: 2012, c.44, s.4
1972, c.7, s.6; 1983, c.18, s.2; 1994, c.48, s.4; 1995, c.48, s.3; 1997, c.48, s.1; 2005, c.7, s.12; 2012, c.44, s.4
Repealed
7Repealed: 2012, c.44, s.4
1972, c.7, s.7; 1994, c.95, s.4; 1995, c.48, s.4; 1999, c.28, s.2; 2001, c.31, s.2; 2005, c.7, s.12; 2007, c.59, s.4; 2012, c.44, s.4
Repealed
8Repealed: 2012, c.44, s.4
1972, c.7, s.8; 2012, c.44, s.4
Repealed
9Repealed: 2012, c.44, s.4
1972, c.7, s.9; 1994, c.48, s.5; 2012, c.44, s.4
Repealed
10Repealed: 2012, c.44, s.4
1972, c.7, s.10; 2005, c.7, s.12; 2012, c.44, s.4
Repealed
11Repealed: 2012, c.44, s.4
1972, c.7, s.11; 2005, c.7, s.12; 2012, c.44, s.4
Repealed
11.1Repealed: 2012, c.44, s.4
1989, c.8, s.1; 2012, c.44, s.4
ADVISORY COMMITTEES
Appointment of Advisory Committee
12(1)The council of a municipality or a rural community that is providing its own land use planning service shall by by-law establish a planning advisory committee consisting of,
(a) in the case of a city or town, not less than five members and not more than fifteen members, or
(b) in the case of a village or a rural community, at least three members but not more than six members.
12(2)Subject to this section, a council mentioned in subsection (1) by resolution
(a) shall appoint members to serve on the advisory committee,
(b) in the case of a village or a rural community, shall designate the chairman and vice-chairman, and
(c) may remove any member.
12(3)Subject to subsection (4), persons appointed to an advisory committee,
(a) in the case of a city or town, may be members of the council or servants of the municipality, but the majority shall be other than such members and servants,
(b) in the case of a village, shall include one member of the council or servant of the municipality, and two persons who are neither members of the council nor servants of the municipality, and
(c) in the case of a rural community, shall include one member of the rural community council or a servant of the rural community, and two persons who are neither members of the rural community council nor servants of the rural community.
12(4)To be a member of an advisory committee, a person shall be
(a) eligible to vote under the Municipalities Act, and
(b) a resident in the municipality or rural community.
12(5)Subject to subsection (7), the term of office of members of an advisory committee is three years, but they are eligible for reappointment.
12(6)The term of office of the chairman and vice-chairman is one year, but they are eligible for re-election or re-designation.
12(7)When appointing original members of the advisory committee, a council or a rural community council shall designate
(a) members who shall hold office until the first day of January of the year following their appointment,
(b) members who shall hold office until the first day of January of the second year following their appointment, and
(c) members who shall hold office until the first day of January of the third year following their appointment,
so that as nearly as possible the term of office of one-third of the members expires each year.
12(8)When the membership of an advisory committee is increased, a council or a rural community council shall, on appointing the additional members, fix their term of office so that as nearly as possible the term of office of one-third of the members expires on the first day of January in each year.
12(9)When the membership of an advisory committee is decreased, a council or a rural community council may remove the necessary number of members, but it shall do so in such manner that as nearly as possible the term of office of one-third of the members expires on the first day of January in each year.
12(10)Where a member of a council or servant of a municipality is appointed to an advisory committee,
(a) unless the council fails to appoint another person to replace him, he shall cease to be a member of the advisory committee upon ceasing to be a member of the council or servant of the municipality;
(b) he is eligible for re-appointment; and
(c) if the council replaces him under paragraph (a), such appointment shall be for the remainder of the term of the member replaced.
12(10.1)If a member of a rural community council or a servant of a rural community is appointed to an advisory committee,
(a) unless the rural community council fails to appoint another person to replace him or her, the member shall cease to be a member of the advisory committee upon ceasing to be a member of the rural community council or a servant of the rural community,
(b) the member is eligible for re-appointment, and
(c) if the rural community council replaces the member under paragraph (a), the appointment shall be for the remainder of the term of the member replaced.
12(11)Where a member of an advisory committee dies, resigns, becomes ineligible to be a member or is removed from office, the council or rural community council may appoint another person to succeed him, and such person shall hold office for the remainder of the term of the member he succeeds.
12(12)Where a council or a rural community council fails to appoint a successor for a member of the advisory committee whose term of office would but for this subsection have expired, the member shall continue to hold office until his successor is appointed, and when appointed the successor shall hold office until the day his term would have expired if he had been appointed at the appropriate time.
1972, c.7, s.12; 1978, c.11, s.1; 2005, c.7, s.12; 2012, c.44, s.4
Duties and powers of Advisory Committee
13The powers and duties of an advisory committee are
(a) those accruing under the provisions mentioned in paragraph 24(1)(a) of the Regional Service Delivery Act, other than the provisions of section 77 mentioned therein;
(b) to advise and make recommendations to the council or rural community council on any matter relating to community planning;
(c) to give its views to the council or rural community council on any by-law proposed to be enacted hereunder, whether or not such views have been requested in accordance with section 66; and
(d) to exercise such powers and perform such duties relating to community planning as are given to it by this Act, the council or rural community council.
1972, c.7, s.13; 1999, c.28, s.3; 2005, c.7, s.12; 2012, c.44, s.4
Administration of Advisory Committee
14An advisory committee,
(a) in the case of a city or town, shall elect a chairman and vice-chairman from among its membership;
(b) may appoint a secretary from among or outside its membership;
(c) may make rules for the conduct of its business; and
(d) shall keep records of its proceedings.
1972, c.7, s.14
Expenses of Advisory Committee
15A council or rural community council shall pay those expenses of an advisory committee that are approved by the council or rural community council.
1972, c.7, s.15; 2005, c.7, s.12
Municipal or Rural Community Planning Director
16(1)Subject to this section, a council of a municipality that is providing its own land use planning service
(a) may appoint
(i) a planner as municipal planning director, or
(ii) a person as municipal planning officer,
and employ such staff as it considers advisable for the purpose of performing services in relation to community planning; and
(b) where an appointment is not made under paragraph (a), shall make such appointment upon
(i) adopting a resolution to publish a statutory notice stating its intention to adopt a municipal plan, rural plan under subsection 27.2(1), basic planning statement, development scheme or urban renewal scheme,
(ii) adopting a resolution under section 71 with respect to a zoning, deferred widening or controlled access street by-law, or
(iii) enacting a subdivision by-law or a by-law mentioned in subparagraph (ii).
16(1.1)Subject to this section, a rural community council that is providing its own land use planning service
(a) may
(i) appoint a planner as rural community planning director or a person as rural community planning officer, and
(ii) employ such staff as it considers advisable for the purpose of performing services in relation to community planning, and
(b) if an appointment is not made under subparagraph (a)(i), shall make such appointment upon
(i) adopting a resolution to publish a statutory notice stating its intention to adopt a rural plan under subsection 77.2(1), basic planning statement, development scheme or urban renewal scheme,
(ii) adopting a resolution under section 71 with respect to a zoning, deferred widening or controlled access street by-law, or
(iii) enacting a subdivision by-law or a by-law mentioned in subparagraph (ii).
16(2)An appointee under subsection (1) or (1.1) shall also be the development officer for the municipality or rural community.
16(3)In the case of a village mentioned in subsection (1),
(a) the council may, with the approval of the Minister, appoint the Director as the development officer for the village, and
(b) the Director is the development officer for the village with respect to a subdivision regulation that is effective therein.
16(4)In the case of a rural community mentioned in subsection (1.1),
(a) the rural community council may, with the approval of the Minister, appoint the Director as the development officer for the rural community, and
(b) the Director is the development officer for the rural community with respect to a subdivision regulation that is effective in the rural community.
1972, c.7, s.16; 1994, c.95, s.5; 2005, c.7, s.12; 2012, c.44, s.4
REGIONAL PLANS
Preparation of Regional Plan
17(1)Subject to this section, a regional service commission shall prepare a regional development plan for its region.
17(2)Prior to and during the preparation of a regional plan, a regional service commission shall consult with the municipalities and the rural communities in its region and with the Minister with respect to the contents of the plan.
17(3)A regional plan shall be prepared
(a) Repealed: 2012, c.44, s.4
(b) on the basis of a written report of studies of the demographic, economic, social and physical conditions of the region.
17(4)Unless deemed by the Minister to be impracticable, a regional plan shall contain
(a) a statement of planning policies for the orderly economic, social and physical development of the region, including policies with respect to
(i) the development of industry and commerce,
(ii) the development and management of natural resources,
(iii) the management of water resources,
(iv) the control and abatement of all forms of pollution of the natural environment,
(v) the identification of areas of urban and rural land use,
(vi) the conservation, rehabilitation, development and redevelopment of housing stocks,
(vii) the development of communication and transportation systems,
(viii) the development and maintenance of educational, cultural, recreational and health facilities, and
(ix) such matters other than those mentioned in this paragraph as are, in the opinion of the Minister, advisable;
(b) a programme for co-ordinating public works and expenditures within the region;
(c) a programme to encourage co-ordinated development among all the municipalities and rural communities in the region;
(d) provisions for regulating the use of land, buildings and structures for the purpose of implementing regional planning policies mentioned in paragraph (a);
(e) an identification of regional developments which are subject to approval in relation to standards described therefor in the plan; and
(f) such proposals as are advisable for the implementation of policies contained in the plan.
17(5)A regional plan may contain a requirement that a council of a municipality in the region prepare a municipal plan or basic planning statement for the municipality or a rural plan under subsection 27.2(1) if the municipality is a village.
17(6)A regional plan may contain a requirement that the rural community council of a rural community in the region prepare a rural plan under subsection 77.2(1).
1972, c.7, s.17; 1977, c.10, s.3; 1983, c.18, s.3; 1987, c.6, s.9; 1994, c.95, s.6; 2005, c.7, s.12; 2012, c.44, s.4
Public notice of Regional Plan
18(1)With respect to a region for which a regional plan has been prepared, the regional service commission shall
(a) publish a notice in a newspaper circulated within the region at least ten, and no more than fourteen, days prior to the day mentioned in subparagraph (ii), stating
(i) the intention of the regional service commission to recommend adoption of the plan,
(ii) the day and place for a public presentation by the regional service commission of the proposed plan,
(iii) that objections to the proposed plan may be made to the regional service commission within sixty days of such notice; and
(b) give to each municipality, rural community and unincorporated area within the region
(i) a copy of the proposed plan, and
(ii) the particulars of the notice mentioned in paragraph (a).
18(2)Where a notice is published under subsection (1), any person may submit to the regional service commission written objections to the proposed regional plan within the period mentioned in that subsection.
18(3)When the time for submission of objections to a proposed regional plan has expired, the regional service commission
(a) shall consider any objections it received, and
(b) subject to subsection (4), may recommend the adoption of the plan.
18(4)If, after the requirements of subsection (1) have been satisfied, the regional service commission amends the proposed regional plan, the provisions of that subsection apply mutatis mutandis to the amendment, except that the words “sixty days” in subparagraph (1)(a)(iii) shall be deemed to be “thirty days”.
18(5)Repealed: 2012, c.44, s.4
18(6)The regional service commission shall file a copy of the regional plan in the registry office and forward a copy to each municipality, rural community and unincorporated area in the region.
18(7)The adoption of a regional plan shall not commit a municipality, a rural community or the Province to undertake any proposal therein suggested or outlined, but shall prevent the undertaking of any development in any manner inconsistent or at variance with,
(a) in the case of the Province, any proposal or policy so outlined or suggested, or
(b) in the case of a municipality, rural community or other person, any proposal so outlined or suggested.
18(8)A regional service commission may adopt an amendment to, or repeal, a regional plan upon complying with the provisions of this section with respect to the adoption of a plan.
1972, c.7, s.18; 1977, c.10, s.4; 2005, c.7, s.12; 2012, c.44, s.4
Regional Development
19(1)Where a regional plan is in force or is the subject of a notice under subsection 18(1), a regional development shall not be undertaken unless, except where approval thereof is required under subsection 81(1), it is approved as conforming to standards described therefor in the plan.
19(2)An approval under subsection (1) may be given
(a) by the planning director as defined in the Regional Service Delivery Act, in the case of a regional development on land in a region,
(b) by the municipal planning director or municipal planning officer, where one has been appointed, in the case of a regional development on land in a municipality that is providing its own land use planning service,
(c) by the rural community planning director or rural community planning officer, if one has been appointed, in the case of a regional development on land in a rural community that is providing its own land use planning service, or
(d) by the Director, where paragraphs (a), (b) and (c) do not apply.
19(3)In approving a regional development hereunder, the approving officer may make the approval subject to such terms and conditions as he considers necessary to ensure consistency with the regional plan.
1972, c.7, s.19; 1977, c.10, s.5; 2005, c.7, s.12; 2012, c.44, s.4
Regional Development
20Where an application is made for an approval mentioned in paragraph 19(2)(a), the planning director as defined in the Regional Service Delivery Act shall forward notice of his disposition thereof within five days to
(a) the council, if the land involved is in a municipality,
(a.1) the rural community council, if the land involved is in a rural community, or
(b) the Director, if the land involved is in an unincorporated area.
1972, c.7, s.20; 1977, c.10, s.6; 2005, c.7, s.12; 2012, c.44, s.4
Regional Development
21Where a regional development is approved under section 19 and no appeal is lodged under section 86 within the time limit prescribed for such appeals, the development is deemed to be consistent with the regional plan.
1972, c.7, s.21; 1977, c.10, s.7
Conflict of Regional Plan with other plans
22Where, in respect of a regional development, there is a conflict between a regional plan and a municipal plan, rural plan, basic planning statement or a by-law or regulation under this Act, except a regulation respecting land use and development under paragraph 77(1)(h.1) or a regulation establishing a provincial planning policy, the regional plan prevails.
1972, c.7, s.22; 1977, c.10, s.8; 1994, c.95, s.7; 2007, c.58, s.4
MUNICIPAL PLANS
Preparation of Municipal Plan
23(1)Subject to this section, a council
(a) may prepare a municipal development plan for the municipality, and
(b) shall prepare a municipal development plan for the municipality if required to do so by a regional plan or order of the Minister.
23(2)Subject to subsection (3), a municipal plan shall be prepared in the form prescribed by the Minister
(a) under the direction of,
(i) where a municipal planning director has been appointed, such director or a planning consultant engaged by the council and responsible to him,
(ii) where a municipal planning officer has been appointed, a planning consultant engaged by and responsible to the council, or
(iii) in the case of a municipality not providing its own land use planning service,
(A) a planning consultant engaged by and responsible to the council, or
(B) the planning director, where the regional service commission prepares the plan;
(b) on the basis of a written report of studies of the economy, finances, resources, population, land use, transportation facilities, municipal facilities and services, and any other matter related to the present or future economic, social or physical conditions of the municipality.
23(3)The zones into which the municipality is proposed to be divided by the zoning by-law shall be delineated on a map or plan attached to and forming part of the municipal plan.
23(4)In preparing a municipal plan, a planner shall
(a) ascertain the assumptions of policy of the council in relation to the proposed plan;
(b) if he or she is engaged by a municipality that is not providing its own land use planning service, seek the advice and assistance of the regional service commission; and
(c) have regard to
(i) the results of the studies mentioned in subsection (2),
(ii) the regional plan, if any, and
(iii) the resources likely to be available for carrying out the proposals of the plan.
23(5)A municipal plan shall contain
(a) statements of policy with respect to
(i) the development and use of land in the municipality,
(ii) the conservation and improvement of the physical environment,
(iii) the control and abatement of all forms of pollution of the natural environment,
(iv) the development of communication, utility and transportation systems,
(v) the reservation and projected use of land for municipal purposes, and
(vi) the provision of municipal services and facilities, including
(A) sewage collection, treatment and disposal,
(B) water supply and distribution,
(C) garbage disposal,
(D) educational and cultural institutions,
(E) recreational facilities, parks, playgrounds and other public open spaces,
(F) fire and police facilities,
(G) cemeteries and crematoria,
(H) urban renewal,
(I) housing,
(J) preservation of buildings and sites of historical interest, and
(K) facilities for the provision of health and social services,
(vii) the co-ordination of programmes of the council relating to the economic, social and physical development of the municipality, and
(viii) such matters other than those mentioned in this clause as are, in the opinion of the council, advisable; and
(b) such proposals as are, in the opinion of the council, advisable for the implementation of policies contained in the plan; and
(c) subject to subsections (6) and (7), a five-year capital budget for the physical development of the municipality.
23(6)With respect to a five-year capital budget contained in a municipal plan, the council shall annually
(a) revise the budget to make it applicable to the next five years, and
(b) submit the revised budget to the Minister for his information.
23(7)Section 67 does not apply to a revision of a budget under subsection (6).
1972, c.7, s.23; 1977, c.10, s.9; 1983, c.18, s.4; 1987, c.6, s.9; 2012, c.44, s.4
Adoption of Municipal Plan
24(1)Subject to this section and section 25, a council may by by-law adopt a municipal plan prepared in the manner set out in section 23.
24(2)Subject to this section, where a council is required under paragraph 23(1)(b) to prepare a municipal plan, it shall by by-law adopt such plan within two years of the effective date of the plan or order mentioned in that paragraph.
24(3)No by-law under this section is valid unless a majority of the whole council votes in favour of it.
24(4)With respect to any municipality, the Minister may extend or reduce a time limit under subsection (2).
1972, c.7, s.24
Public notice of Municipal Plan
25(1)Before complying with the requirements of section 68 with respect to a municipal plan, a council shall publish a notice in a newspaper circulated in the municipality at least ten, and no more than fourteen, days prior to the day mentioned in paragraph (b), stating
(a) the intention of the council to adopt a municipal plan;
(b) the day and place for a public presentation by the council of the proposed plan;
(c) that objections to the proposed plan may be made to the council within thirty days of the day of the public presentation.
25(2)Where a notice is published under subsection (1), any person may submit to the council written objections to the proposed municipal plan within the period mentioned in that subsection.
1972, c.7, s.25
Repealed
26Repealed: 1994, c.95, s.8
1972, c.7, s.26; 1994, c.95, s.8
Effect of Municipal Plan
27The adoption of a municipal plan shall not commit the municipality or the Province to undertake any proposal therein suggested or outlined, but shall prevent the undertaking of any development in any manner inconsistent or at variance with
(a) in the case of the municipality, any proposal or policy so outlined or suggested, or
(b) in the case of the Province or a person, any proposal so outlined or suggested.
1972, c.7, s.27
Conflict of Municipal Plan with zoning or subdivision by-law
27.1Where there is a conflict between a municipal plan and a zoning or subdivision by-law, the municipal plan prevails.
1983, c.18, s.5
RURAL PLANS FOR VILLAGES
1994, c.95, s.9
Rural plans for villages
27.2(1)The council of a village may adopt by by-law a rural plan for the village if no municipal plan, basic planning statement or zoning by-law is in force in the village at the same time as the rural plan.
27.2(2)A rural plan under subsection (1) shall contain
(a) statements of policy with respect to
(i) residential uses,
(ii) commercial uses,
(iii) institutional uses,
(iv) recreational facilities and public open spaces,
(v) resource uses,
(vi) protection of water supplies,
(vii) heritage buildings and sites of historical or archeological interest,
(viii) conservation of the physical environment, or
(ix) such other matters that the council considers necessary;
(b) such proposals as the council considers advisable for the implementation of the policies in the rural plan; and
(c) zoning provisions.
27.2(3)Subsections 34(3) to (9) and sections 35 to 39 apply with the necessary modifications to zoning provisions referred to in paragraph (2)(c).
27.2(4)Where there is a conflict between a policy or a proposal referred to in paragraphs (2)(a) and (b) and a zoning provision referred to in paragraph (2)(c), the policy or proposal prevails.
27.2(5)Repealed: 1999, c.28, s.4
27.2(6)Notwithstanding any other provision in this Act, the council shall not vote on the rural plan until after the fourteen days referred to in subsection (7) and, if written objections are submitted under subsection (7), the written objections are considered.
27.2(7)Any person who wishes to submit written objections in relation to objections raised on the day fixed under subsection 68(1) for consideration of objections may do so by sending them to the person referred to in paragraph 68(2)(c) within fourteen days after that day.
27.2(8)Where the council substantially amends the proposed rural plan after the notice under paragraph 68(1)(b) is published, section 68 and subsections (6) and (7) apply with the necessary modifications to the amendment.
27.2(9)Where there is a conflict between a rural plan and a subdivision by-law, the rural plan prevails.
27.2(10)The adoption of a rural plan does not commit the village or the Province to undertake any proposal in the rural plan.
1994, c.95, s.9; 1999, c.28, s.4
AREA PLANS
Repealed: 1994, c.95, s.10
Repealed
28Repealed: 1994, c.95, s.11
1972, c.7, s.28; 1977, c.10, s.10; 1994, c.48, s.6; 1994, c.95, s.11
BASIC PLANNING STATEMENTS
Preparation of Basic Planning Statement
29(1)Subject to this section, where a municipal plan or rural plan under subsection 27.2(1) is not in effect, the council
(a) may, with the consent of the Minister, prepare a basic planning statement for the municipality, and
(b) shall prepare a basic planning statement for the municipality if required to do so by a regional plan or order of the Minister.
29(2)A basic planning statement mentioned in subsection (1) shall
(a) be a statement of the objectives for the future development of the municipality;
(b) contain a statement of the objectives to be accomplished by a zoning or subdivision by-law;
(c) be consistent with the applicable regional plan if any; and
(d) be based on such studies and surveys as the Minister may require.
1972, c.7, s.29; 1994, c.95, s.12
Adoption of Basic Planning Statement
30(1)Subject to this section, a council may by by-law adopt a basic planning statement prepared under the conditions and in the manner set out in section 29.
30(2)Subject to this section, where a council is required under paragraph 29(1)(b) to prepare a basic planning statement, it shall by by-law adopt such statement within two years of the effective date of the plan or order mentioned in that paragraph.
30(3)No by-law under this section is valid unless a majority of the whole council votes in favour of it.
30(4)With respect to any municipality, the Minister may extend or reduce a time limit under subsection (2).
1972, c.7, s.30
Basic Planning Statements for rural communities
30.1If a rural plan under subsection 77.2(1) is not in effect for a rural community, sections 29 and 30 apply with the necessary modifications to the rural community council.
2005, c.7, s.12
Effect of Basic Planning Statement
31The provisions of sections 25, 26 and 27 pertaining to a municipal plan apply mutatis mutandis to a basic planning statement adopted under section 30.
1972, c.7, s.31
DEVELOPMENT SCHEMES
Preparation of Development Scheme
32(1)Where a municipal plan, basic planning statement or rural plan under subsection 27.2(1) or 77.2(1) is in effect, the council or rural community council, as the case may be, may by by-law adopt a development scheme to carry out or amplify
(a) any proposal therein suggested or outlined, or
(b) any project that is not inconsistent therewith.
32(2)For greater certainty without limiting the general power conferred by subsection (1), a development scheme
(a) shall
(i) consist of such written statements, maps, drawings and other descriptive matter, all under seal, signed by the clerk or rural community clerk and indicating that they are a part of the scheme, as may be necessary to illustrate the scheme,
(ii) delineate the land affected by the scheme,
(iii) set out details of the development or redevelopment to be carried out in the scheme area,
(iv) describe the manner in which the scheme is intended to be implemented,
(v) indicate the amount of any land to be reserved in the scheme area, or if feasible the particular land to be reserved, and the manner in which the reservation is to be effected, and
(vi) prescribe the manner in which land in the scheme area is to be subdivided; and
(b) may, in relation to the scheme area,
(i) prescribe
(A) the manner in which existing buildings and structures may be altered or repaired where such developments would not otherwise be permitted by the scheme, and
(B) developments for which no building permit is required,
(ii) provide for the acquisition, assembly, consolidation, sale or lease by the municipality or rural community of such land, buildings or structures necessary to carry out the scheme,
(iii) indicate land to be acquired as the site or location of streets, public buildings, schools, parks or recreation areas, or other public services such as light, water or sewerage,
(iv) provide for agreements with the owners of land mentioned in subparagraph (iii) as will permit the acquisition of such land for such purposes,
(v) allocate areas of land available for residential, commercial, industrial, agricultural or other purpose at any particular time, and
(vi) specify the order and timing for subdivision or development of any particular part thereof.
32(3)A development scheme shall be prepared under such direction as is provided herein for the preparation of
(a) a municipal plan or rural plan under subsection 27.2(1), in the case of a scheme pertaining to a municipality or rural community, or
(b) a regional plan, in the case of a scheme pertaining to an unincorporated area,
and shall make provision for such general matters as the Minister may require.
32(4)The provisions of sections 25, 26 and 27 with respect to a municipal plan apply mutatis mutandis to a development scheme under this section.
32(5)Notwithstanding any development scheme by-law, a council or rural community council, as the case may be, may authorize the constructing, altering or repairing of any land, building or structure if
(a) in its opinion, such land, building or structure will conform to the scheme, or
(b) the owner of the land, building or structure enters into an agreement with the council or rural community council containing such terms and conditions as the council or rural community council considers fit.
32(6)When registered in the registry office, an agreement under this section is binding on any subsequent owner of the land in respect of which the agreement is made until discharged by the municipality or rural community, as the case may be.
32(7)An expense incurred by a council or rural community council in acquiring land or taking any other action for the purposes of a development scheme shall be met as part of the cost of such scheme, and the proceeds of any sale or other disposition of land so acquired shall be applied against the cost of the scheme.
32(8)Where there is a conflict between a development scheme and a zoning by-law, subdivision by-law or zoning provisions in a rural plan under subsection 27.2(1) or 77.2(1), the development scheme shall prevail.
1972, c.7, s.32; 1977, c.10, s.11; 1994, c.95, s.13; 2005, c.7, s.12
URBAN RENEWAL SCHEMES
Preparation of Urban Renewal Scheme
33(1)Subject to subsection (2), a council may by an urban renewal by-law
(a) designate any area of the municipality as an area for urban renewal, and
(b) adopt a scheme to be known as an urban renewal scheme for an area mentioned in paragraph (a).
33(2)The provisions of subsections 32(2) to (8) inclusive respecting a development scheme apply mutatis mutandis to an urban renewal scheme adopted under this section.
33(3)This section applies with the necessary modifications to a rural community council.
1972, c.7, s.33; 2005, c.7, s.12
ZONING BY-LAW
Mandatory zoning by-law
34(1)Upon the adoption of a municipal plan, a council shall
(a) proceed forthwith to draft a zoning by-law to carry out the intent of the plan; and
(b) enact a by-law mentioned in paragraph (a) within
(i) one year, or
(ii) such longer period or periods, not to exceed a total of two years, as the Minister, after consultation with the municipality, may decide.
34(2)Upon the adoption of a basic planning statement, a council may enact a zoning by-law to carry out the intent of the statement.
34(3)Subject to subsection (4), for greater certainty without limiting the general power conferred by subsection (1) or (2), a zoning by-law mentioned therein shall divide the municipality into zones, prescribe the purposes for which land, buildings and structures in any zone may be used, and prohibit the use of land, buildings and structures for any other purpose, and may
(a) regulate as to any zone
(i) the minimum size and dimensions of lots and other parcels into which land may be subdivided, and the minimum size and dimensions of land required for any particular class of use or size of building or structure,
(ii) the maximum density of population,
(iii) the height, number of storeys, ground area, floor area and bulk of buildings and structures,
(iv) the percentage of land that may be built upon, and the depth, size or area of yards, courts, parking areas and open spaces,
(v) the placement, location and arrangement of buildings and structures, including their setting back from the boundaries of streets and other public areas, and from rivers, streams or other bodies of water,
(vi) the design, character and appearance of buildings and structures,
(vii) the placement, height and maintenance of fences, walls, hedges, shrubs, trees and other objects,
(viii) the types, dimensions and location of means of access of lots to streets,
(ix) the facilities to be provided and maintained for off-street parking and loading of vehicles,
(x) the size of rooms and the means of lighting and ventilating buildings,
(xi) the excavation of sand, gravel, clay, shale, limestone or other deposit for purposes of the sale or other commercial use of the material excavated,
(xii) the altering of land levels for building or other purposes in so far as this may affect surface drainage,
(xiii) the location, dimensions, standards of construction and purposes of public advertisement,
(xiv) the preservation and planting of trees,
(xv) the location of buildings and structures in relation to sources of public water supply, and
(xvi) subject to standards established pursuant to an Act of the Parliament of Canada or the Legislature, standards of pollution control to which permitted uses must conform;
(b) prohibit
(i) any change in the purpose for which land or a building or structure is used,
(ii) the use of land, buildings and structures for display of public advertisement, or
(iii) an excavation mentioned in subparagraph (a)(xi),
without obtaining a permit therefor;
(c) prescribe a system of permits, their terms and conditions, the conditions under which they may be issued, suspended, reinstated, revoked and renewed, their form and the fees therefor;
(d) prohibit the erection of any building in respect of which, in the opinion of the council, satisfactory arrangements have not been made for the supply of electric power, water, sewerage, street or other services or facilities;
(e) require the improvement, removal or demolition of any building or structure that, in the opinion of the council, is dilapidated, dangerous or unsightly, and empower the council to improve, remove or demolish such building or structure at the expense of the owner or to acquire the parcel of land on which such building or structure is situated;
(e.1) prescribe standards with respect to the appearance of land in any zone, and require landscaping and improvements in accordance with standards prescribed in the by-law;
(f) designate specific uses of land, buildings or structures, otherwise permitted in a zone, as being subject to such special conditions or standards as may be stated in the by-law;
(g) prohibit the erection of any building or structure on any site where it would otherwise be permitted under the by-law when, in the opinion of the advisory committee or regional service commission, the site is marshy, subject to flooding, excessively steep or otherwise unsuitable for a proposed purpose by virtue of its soil or topography;
(h) empower the advisory committee or regional service commission, subject to such terms and conditions as it considers fit,
(i) to authorize, for a temporary period not exceeding one year, a development otherwise prohibited by the by-law,
(i.1) to authorize, for an additional temporary period not exceeding one year, a development otherwise prohibited by the by-law if
(A) the applicant holds an authorization under subparagraph (i) that is to expire or has expired,
(B) an application with respect to the land has been made to amend the applicable zoning by-law, basic planning statement or rural plan, and
(C) the advisory committee or regional service commission has received a resolution from the council confirming that the council will consider the application referred to in clause (B); and
(ii) to require the termination or removal of a development authorized under subparagraph (i) or (i.1) at the end of the authorized period;
(h.1) empower the advisory committee or regional service commission
(i) to delegate its authority under subparagraph (h)(i) to the development officer, and
(ii) to authorize a delegate under subparagraph (i) to further delegate his or her authority under subparagraph (h)(i) to any person;
(i) provide that the council may, in its discretion, allow a developer to pay to the municipality a sum of money in lieu of providing such off-street parking as may be required by the by-law, the amount so payable to be determined according to a fixed amount per parking space, as shall be provided by the by-law, and payable on such terms and conditions as the council determines;
(j) provide that anyone who applies to the council for an amendment to the by-law shall pay a fee to the council and that the council may, if it so decides, return all or part of the fee to the applicant;
(k) provide
(i) procedures for applying for amendments to the by-law,
(ii) conditions and standards under which changes in zones may be made, or
(iii) that the council will not consider applications for amendments, or re-submissions thereof, except at such times as may be specified in the by-law; and
(l) prescribe types of development that are exempted from the provisions of section 81.
34(4)In prescribing the purposes for which land, buildings and structures in any zone may be used, a zoning by-law may
(a) establish classes of such purposes with respect to main, secondary and accessory uses, and permit land, buildings or structures to be used for
(i) one or more classes of such purposes, or
(ii) one or more purposes in any class;
(b) subject to section 38, in a zone to be known as an integrated development zone, permit developments consisting of combinations of uses of land, buildings and structures if
(i) such combinations of uses are contained in a specific proposal described in a resolution or agreement adopted or entered into under section 39, and
(ii) the land to be so developed is rezoned for purposes of the development; or
(c) prescribe particular purposes therefor
(i) in respect of which the advisory committee or regional service commission, subject to subsection (5), may impose terms and conditions, and
(ii) that may be prohibited by the advisory committee or regional service commission where compliance with terms and conditions imposed under subparagraph (i) cannot reasonably be expected.
34(5)Terms and conditions imposed under paragraph (4)(c) shall be limited to those considered necessary by the advisory committee or regional service commission to protect
(a) properties within the zone or in abutting zones, or
(b) the health, safety and welfare of the general public.
34(6)The zones into which a municipality is divided by a zoning by-law, except in the case of a by-law in effect on the coming into force of this subsection and containing descriptions of zones in detail, shall be shown on a map or plan attached to and forming part thereof.
34(7)A plan mentioned in subsection (6) may indicate any streets affected by a deferred widening by-law and any building line established thereby.
34(8)Where, in good faith, a building or structure is located so as to encroach up to sixty centimetres on a set-back requirement pursuant to subparagraph (3)(a)(v), or encroach up to thirty centimetres on a yard requirement pursuant to subparagraph (3)(a)(iv), such encroachment does not constitute a violation of the requirements of the by-law.
34(9)An encroachment under subsection (8) is deemed to have occurred in good faith where the development officer, or a person to whom he has delegated such power, so attests.
34(10)A delegation authorized by a by-law under paragraph (3)(h.1) shall be in writing and shall set out the following:
(a) the manner in which the delegate shall exercise his or her authority; and
(b) any limitations, terms or conditions on the manner in which the delegate may exercise his or her authority.
1972, c.7, s.34; 1977, c.M-11.1, s.4; 1977, c.10, s.12; 1980, c.9, s.1; 1982, c.3, s.9; 1983, c.18, s.6; 1984, c.39, s.1; 1987, c.6, s.9; 1994, c.95, s.14; 2007, c.59, s.6; 2012, c.44, s.4
Variances from zoning by-law
35(1)The advisory committee or regional service commission may permit, subject to such terms and conditions as it considers fit,
(a) a proposed use of land or a building that is otherwise not permitted under the zoning by-law if, in its opinion, the proposed use is sufficiently similar to or compatible with a use permitted in the by-law for the zone in which the land or building is situated; or
(b) such reasonable variance from the requirements of the zoning by-law falling within paragraph 34(3)(a) as, in its opinion, is desirable for the development of a parcel of land or a building or structure and is in accord with the general intent of the by-law and any plan or statement hereunder affecting such development.
35(2)A development officer may, subject to the terms and conditions that he or she considers fit, permit a reasonable variance from the requirements of a zoning by-law falling within subparagraph 34(3)(a)(i), (iii), (iv), (v), (vii), (viii), (ix) or (xiii) if the development officer is of the opinion that the variance is desirable for the development of a parcel of land or a building or structure and accords with the general intent of the by-law and any plan or statement affecting the development.
35(3)If an advisory committee or a regional service commission has made a determination with respect to a request for a variance under paragraph (1)(b), a request with respect to the same variance shall not be made to a development officer.
35(4)If a development officer has made a determination with respect to a request for a variance under subsection (2), a request with respect to the same variance shall not be made to an advisory committee or a regional service commission.
35(5)A development officer may delegate the power to permit a variance under subsection (2) to any person.
1972, c.7, s.35; 2007, c.59, s.7; 2012, c.44, s.4
Notice of variance
36If requested to permit a proposed use or variance under section 35, the advisory committee, regional service commission or development officer may give notice to owners of land in the neighbourhood of the land in respect of which the request is received
(a) describing the land,
(b) describing the use proposed or variance requested, and
(c) giving the right to make representation to the advisory committee, regional service commission or development officer in connection therewith within the time limit set out in the notice.
1972, c.7, s.36; 2007, c.59, s.8; 2012, c.44, s.4
Payments by developer
37All money received by the council under paragraph 34(3)(i) is to be paid into a special account, and the money in that account is to be expended by the council for acquiring or developing land for public off-street parking, but pending such expenditure the money shall be invested in Authorized Trustee Investments and the earnings derived from such investments paid into the special account.
1972, c.7, s.37; 2007, c.59, s.9
Integrated development scheme
38An integrated development zone shall not be described or shown as set out in subsection 34(6) except upon compliance with the provisions of paragraph 34(4)(b).
1972, c.7, s.38
Re-zoning and amendments
39(1)Subject to this section, where a person applies to the council to have an area of land re-zoned to permit the carrying out of a specific proposal, the council may
(a) by resolution,
(i) set out the proposal,
(ii) impose reasonable terms and conditions concerning
(A) uses of the land, buildings and structures,
(B) site layout and design, including parking areas, landscaping, and entry and exit ways,
(C) external design, appearance and spacing of buildings and structures, and
(D) other matters that it considers relevant to the situation,
(iii) prescribe time limits within which any part of the proposal mentioned in subparagraph (i) or terms and conditions imposed under subparagraph (ii) shall be carried out, and
(iv) provide that on the re-zoning thereof the land therein and any building or structure thereon shall not be developed or used except in accordance with the proposal set out, terms and conditions imposed and time limits prescribed pursuant to this paragraph; or
(b) enter into an agreement with such person, respecting matters that may be contained in a resolution pursuant to paragraph (a) and such additional matters as the parties may agree, to assure that on the re-zoning thereof the land therein and any building or structure thereon shall be developed and used in accordance with the terms of the agreement.
39(2)A resolution or agreement adopted or entered into pursuant to subsection (1) shall not become effective until a certified copy of the re-zoning by-law together with a certified copy of the resolution or agreement is filed in the registry office.
39(3)Where the council varies the resolution or agreement entered into under subsection (1) or enters into a new agreement, the council shall give notice of the variation of the resolution or agreement or of the new agreement in accordance with section 68 which shall apply with the necessary modifications and the variation of the resolution or agreement or the new agreement shall not become effective until a certified copy of it and, if necessary, a certified copy of the by-law amending or replacing the by-law referred to in subsection (2) are filed in the registry office.
39(4)The provisions of subsection 32(6) with respect to an agreement apply mutatis mutandis to a resolution or agreement under this section.
39(5)Where land or a building or structure to which a resolution or an agreement under this section pertains is developed or used contrary to the provisions of the resolution or agreement, or where the developer fails to meet a time limit prescribed therein, the council may cancel the resolution or the agreement.
39(6)Where the council cancels a resolution or agreement under subsection (5), the land to which that resolution or agreement pertains shall revert to the type of zone under which it fell before re-zoning upon filing of a notice of the cancellation in the registry office.
39(7)The council shall immediately after filing a notice of the cancellation in the registry office under subsection (6)
(a) give notice of the cancellation, and the effect thereof, in a newspaper circulated in the municipality, and
(b) take the necessary steps to have the re-zoning by-law repealed,
but failure to publish a notice in a newspaper or to repeal the rezoning by-law shall not affect the reversion of the land to the type of zone under which it fell before re-zoning.
39(8)Before entering into an agreement with a person under this section, the council may require such person to deliver a performance bond, negotiable instrument or other security acceptable to the council assuring implementation of the agreement.
1972, c.7, s.39; 1974, c.6 (Supp.), s.2; 1977, c.10, s.13; 1984, c.39, s.2; 1995, c.37, s.1
Non-conforming use
40(1)The enactment of a zoning by-law or regulation that amends or repeals an existing zoning by-law or regulation or the enactment or making of zoning provisions in a rural plan that amend or repeal existing zoning provisions
(a) may cause uses then existing to become non-conforming, and
(b) does not change the date on which a use became non-conforming.
40(2)A non-conforming use may continue notwithstanding the zoning by-law or regulation or rural plan but
(a) if such use is discontinued for a consecutive period of ten months, or such further period as the advisory committee or regional service commission, as the case may be, considers fit, it shall not be recommenced and any further use of the land, building or structure shall conform with the zoning by-law or regulation or rural plan; and
(b) if a building or structure so used has, in the opinion of the advisory committee or regional service commission, as the case may be, been damaged to the extent of at least half of the whole building or structure, exclusive of the foundation, the building or structure shall not be repaired or restored or used except in conformity with the zoning by-law or regulation or rural plan, unless the advisory committee or regional service commission agrees otherwise, and, in the case of a by-law, the council may purchase or otherwise acquire the parcel of land on which such building or structure is situated.
40(3)A non-conforming use of a part of a building may be extended throughout the building, except that, where a portion of the building was constructed subsequent to the date the use became non-conforming, the use shall not be extended into that portion without the consent of the advisory committee or regional service commission.
40(4)With the consent of the advisory committee or regional service commission, as the case may be, a non-conforming use may be changed to a similar non-conforming use.
40(5)Except as required by statute, by-law or regulation, a person shall not enlarge, add to or structurally alter a building containing a non-conforming use.
1972, c.7, s.40; 1977, c.10, s.14; 1983, c.18, s.7; 1994, c.95, s.15; 1999, c.28, s.5; 2012, c.44, s.4
Non-conforming use
41(1)The council may require that any land, building or structure containing a non-conforming use shall be maintained and kept in a condition appropriate to the area in which it is located, in accordance with standards prescribed by the council.
41(2)Where standards have been prescribed under subsection (1), the council may give to the owner and to the occupier of the land, building or structure written notice, setting forth
(a) the prescribed standards,
(b) the consequences of failing to comply with the standards, and
(c) the right of appeal given under section 86.
41(3)Subject to subsection (4), if the standards prescribed under subsection (1) are not complied with, the council may
(a) perform, at the expense of the owner or occupier, the work required to meet the standards, or
(b) require the termination of the use.
41(4)At least ten days before taking any action pursuant to subsection (3), the council shall give written notice to the owner and to the occupier setting forth the action intended to be taken and when the action will be taken.
41(5)The council shall take no action under subsection (3) or (4) until
(a) the time for appeal of such action under section 86 has expired and no appeal has been lodged, or
(b) any appeal mentioned in paragraph (a) has been disposed of.
1972, c.7, s.41; 1987, c.6, s.9
41.01Sections 40 and 41 apply with the necessary modifications to a rural community and a rural community council.
2005, c.7, s.12
FLOOD RISK AREA BY-LAW
2005, c.7, s.12
Designation of flood risk area
41.1(1)Where a municipality requests, the Minister may designate any area within the municipality to be a flood risk area.
41.1(2)The designation mentioned in subsection (1) shall be effected by the production of a map of the municipality or of any portion thereof, showing the various elevations along the line delineating the flood risk area, and in the event of a conflict between the actual elevation of any area shown at the time of the designation and the line delineating the flood risk area, the actual elevation shown shall be deemed to be the boundary of the flood risk area.
41.1(3)Notwithstanding subsection (2), no parcel of land shall be deemed to be outside a flood risk area by virtue of its having been filled, subsequent to the designation of the flood risk area, to an elevation in excess of that shown on the flood risk map referred to in subsection (2).
1979, c.9, s.2; 1986, c.8, s.23; 1989, c.55, s.26; 2000, c.26, s.48
Flood risk area by-law
41.2(1)Where a flood risk area has been designated pursuant to section 41.1, the council may enact a flood risk area by-law to be effective within the flood risk area and to provide for
(a) the maintenance of an adequate floodway for conveyance of flood waters,
(b) the conservation of the flood-water storage capacity of any area, and
(c) the protection of new development from the risk of flood damage.
41.2(2)Without limiting the generality of subsection (1), a flood risk area by-law may prescribe engineering standards, designs and techniques to be followed in all development within the flood risk area and may prohibit all development except in accordance with the prescribed standards, designs and techniques.
41.2(3)In sections 41.1 to 41.3, “development” includes
(a) the erecting, placing, relocating, structurally altering or replacing of a building or structure, and any excavation or other site work preparatory thereto, except in respect of utility poles and wires, traffic control devices or statutory signs and notices,
(b) the resurfacing of any area,
(c) the alteration of land levels on the topography of any area, including excavation, and
(d) the placing or dumping of landfill in any manner.
41.2(4)A flood risk area by-law may prohibit development that would obstruct or interfere with the normal floodway or free flow of flood waters during a flood period.
41.2(5)A flood risk area by-law may require that all development in a flood risk area or in any portion thereof shall be carried out so as not to reduce the flood water storage capacity of such area, and may prohibit development in any other manner.
41.2(6)Where a flood risk area by-law provides that all development within the flood risk area or any portion thereof shall be carried out so as not to reduce the flood water storage capacity of the area, the council may by resolution permit a development where the developer establishes that he is unable to provide the additional storage capacity for flood water displaced by the development and where the developer has paid to the municipality an amount of money sufficient to enable the municipality to economically provide for equivalent flood water storage capacity, whether within or without the flood risk area.
41.2(7)In no event shall the amount of money paid to the municipality pursuant to subsection (6) exceed the sum of
(a) the market value, at the time of the issuance of the permit for the proposed development, of land available to provide the equivalent flood water storage capacity referred to in subsection (6), and
(b) the necessary construction costs to provide such capacity.
41.2(8)Money received by a municipality pursuant to subsection (6) shall be deposited in a special interest bearing trust account and shall only be expended by the municipality for flood control purposes.
1979, c.9, s.2; 2007, c.59, s.10
Flood risk area by-law
41.3(1)A flood risk area by-law may provide for a system of permits and the manner of application therefor, including the fees to be paid, as well as the conditions of their issuance, refusal or cancellation.
41.3(2)A permit referred to in subsection (1) may be issued subject to such terms and conditions as will reasonably ensure that the development will be carried out in accordance with prescribed engineering standards, designs and techniques.
41.3(3)A permit issued under a flood risk area by-law shall not authorize any development prohibited under this or any other Act.
41.3(4)Notwithstanding any other provision of this Act, no appeal shall lie to the Board under subparagraph 86(2)(a)(ii) as a result of the enactment of a flood risk area by-law.
1979, c.9, s.2
Flood risk area by-law
41.4Sections 41.1 to 41.3 apply with the necessary modifications to a rural community and a rural community council.
2005, c.7, s.12
SUBDIVISION BY-LAW
Approval of Subdivision By-law
42(1)Subject to this section, a council may enact a subdivision by-law to regulate the subdividing of land in the municipality.
42(2)A by-law under subsection (1) shall be consistent with an applicable regional plan, rural plan under subsection 27.2(1), municipal plan or basic planning statement.
42(2.1)Subject to this section, a rural community council may enact a subdivision by-law to regulate the subdividing of land in the rural community.
42(2.2)A by-law under subsection (2.1) shall be consistent with an applicable regional plan or rural plan under subsection 77.2(1).
42(3)For greater certainty without limiting the general power conferred by subsection (1) or (2.1), a subdivision by-law may
(a) prescribe forms for tentative plans and fees to be paid by persons seeking approval of tentative and subdivision plans;
(b) prescribe standards for laying out public and future streets, lots, blocks, land for public purposes and other parcels of land in subdivisions;
(c) provide that every lot, block and other parcel of land in a subdivision shall abut
(i) a street owned by the Crown or the municipality or rural community, as the case may be, or
(ii) such access other than a street mentioned in subparagraph (i) as may be approved by the advisory committee or regional service commission as being advisable for the development of land;
(d) require as a condition of approval of a subdivision plan that, where entry will be gained to the subdivision by means of an existing street or other access, by whomever owned, the person seeking approval of such plan shall
(i) make provision to bring the existing access to the same standard as may be required for streets within the subdivision, or
(ii) contribute to the cost of work referred to in subparagraph (i) to the extent required for streets within the subdivision pursuant to paragraph (i), provided the amount contributed per linear metre for such access does not exceed the cost to such person per linear metre for streets within the subdivision or, where the plan does not provide for the laying out of streets to be publicly owned, the average cost per linear metre for subdivision streets within the municipality or rural community constructed during the preceding twelve months;
(e) prescribe classes of subdivisions with respect to
(i) facilities required pursuant to paragraph (i),
(ii) lot sizes in relation to water and sewerage services, or
(iii) land for public purposes;
(f) require as to any subdivision or class of subdivision that land
(i) in an amount indicated in the by-law not exceeding ten per cent of the area of the subdivision exclusive of the land to be vested as public streets on the filing of the plan in the registry office, and
(ii) at such location as may be approved pursuant to section 56,
is to be set aside as land for public purposes and so indicated on the subdivision plan, as a condition of approval of a subdivision plan;
(g) provide that in the discretion of the council or rural community council there is to be paid to the municipality or rural community, as the case may be, in lieu of setting aside land under a provision pursuant to paragraph (f), such sums as may be indicated in the by-law not exceeding eight per cent of the market value of land in the subdivision at the time of submission for approval of the subdivision plan, exclusive of land indicated as streets intended to be publicly-owned;
(h) subject to any applicable set-back regulation, where no rural plan under subsection 27.2(1) or 77.2(1) or zoning by-law is in effect, regulate by classes of subdivisions the location of buildings and structures on lots established subsequent to the adoption of a provision under this paragraph;
(i) require that a person proposing to subdivide land shall provide within the subdivision, or contribute to the cost thereof to the extent required by the by-law, such facilities as streets, curbing, sidewalks, culverts, drainage ditches, water and sewer lines and others as may be required by the by-law for that class of subdivision;
(j) provide that the development officer shall not approve a subdivision plan unless, in the opinion of the council or rural community council,
(i) the council or rural community council, as the case may be will be able in the foreseeable future to provide the proposed subdivision with streets, water and sewer lines, light, recreational areas or other facilities required by the by-law for that class of subdivision, or the person proposing the subdivision has made satisfactory arrangements for providing such facilities, and
(ii) the person proposing the subdivision has made satisfactory arrangements to
(A) enter into an agreement with the council or rural community council that is binding on his heirs, successors and assigns to comply with a provision under paragraph (i),
(B) deposit with the municipality or rural community a sum sufficient to cover the cost with respect to facilities that the by-law requires him to pay, or
(C) deliver to the municipality or rural community a performance bond acceptable to the council or rural community council, as the case may be, in an amount sufficient to cover the cost mentioned in clause (B);
(k) provide that the development officer shall not approve a subdivision plan if, in his opinion and in the opinion of the advisory committee or regional service commission,
(i) the land is not suited to the purpose for which it is intended or may not reasonably be expected to be used for that purpose within a reasonable time after the subdivision plan is approved, or
(ii) the proposed manner of subdividing will prejudice the possibility of further subdividing the land or the convenient subdividing of adjoining land;
(l) provide that names of streets in subdivisions are subject to the approval of the advisory committee or regional service commission; or
(m) in respect of any part of the municipality or rural community not in an integrated survey area, set out, within limits defined by regulation under the Surveys Act, the design and standard of legal survey monuments to be used in laying out subdivisions.
42(4)Where, pursuant to subparagraph (3)(f), land for public purposes is required to be set aside and so indicated on a subdivision plan, a person proposing to subdivide land may
(a) at such location as may be approved pursuant to section 56, set aside a greater amount of land for public purposes than is required by the subdivision by-law, and
(b) if the amount of land for public purposes vested in a municipality or a rural community by a filed subdivision plan exceeds the amount required by the subdivision by-law when the plan was approved, credit the excess amount against any further such requirement in respect of any land of which the land comprised in the filed subdivision plan formed a part.
42(5)If, pursuant to paragraph (3)(a), a by-law includes a fee to be paid for the approval of a tentative plan, the by-law may include different fees for the approval of tentative plans for type 1 subdivisions and type 2 subdivisions.
1972, c.7, s.42; 1973, c.22, s.1; 1974, c.6 (Supp.), s.3; 1977, c.M-11.1, s.4; 1977, c.10, s.15; 1994, c.95, s.16; 2005, c.7, s.12; 2007, c.59, s.11; 2012, c.44, s.4
Public purpose land
43(1)Land for public purposes vested in a municipality under section 56 or 57 and land acquired under subsection (2) shall be set aside by the council as land for public purposes, but the council may sell the land if
(a) the council receives the concurrence of the advisory committee or regional service commission for the sale or six weeks have elapsed from the date a request in writing was made for such concurrence, and
(b) a majority of the whole council votes in favour of the sale.
43(2)All money received by the council under subsection (1) or under paragraph 42(3)(g) is to be paid into a special account, and the money in that account is to be expended by the council for acquiring or developing land for public purposes, but pending such expenditures the money shall be invested in Authorized Trustee Investments and the earnings derived from such investments paid into the special account.
43(3)Land for public purposes vested in a rural community under section 56 or 57 and land acquired under subsection (4) shall be set aside by the rural community council as land for public purposes, but the rural community council may sell the land if
(a) the rural community council receives the concurrence of the advisory committee or regional service commission for the sale or six weeks have elapsed from the date a request was made in writing for such concurrence, and
(b) a majority of the whole rural community council votes in favour of the sale.
43(4)All money received by the rural community council under subsection (3) or under paragraph 42(3)(g) is to be paid into a special account, and the money in that account is to be expended by the rural community council for acquiring or developing land for public purposes, but pending such expenditures the money shall be invested in Authorized Trustee Investments and the earnings derived from the investments paid into the special account.
1972, c.7, s.43; 1974, c.6 (Supp.), s.4; 2005, c.7, s.12; 2012, c.44, s.4
Exemptions and variances
44(1)Where a subdivision by-law is in effect, the development officer
(a) is the receiver of tentative and subdivision plan submissions under the by-law;
(b) may, in respect of a subdivision not involving the laying out of streets, the setting aside of land for public purposes or a variance, subject to such terms and conditions as he considers fit, exempt any person from submitting a tentative plan, but he shall in such case instruct such person as to the manner of subdividing the land;
(c) may exempt any person from a scale or size requirement under subsection 49(1) or from any requirement of subsection 49(2);
(d) may, where it is sought to subdivide only a part of a parcel of land, exempt the subdivision plan from the requirement of showing all the boundaries of such parcel;
(e) may, where it is sought to alter the boundaries of two or more adjoining parcels of land, exempt the subdivision plan from the requirement of showing all the boundaries of such parcels;
(f) may grant exemptions in accordance with section 48;
(g) shall, when a tentative plan received by him involves the laying out of public or future streets or the setting aside of land for public purposes or, in his opinion, may affect the future location of public streets, forward a copy of the plan to the council, the rural community council or the Minister of Transportation and Infrastructure and to the advisory committee or regional service commission, whichever is authorized hereunder to assent to the subdivision plan or make recommendations with respect to it;
(h) shall, when a tentative plan received by him may in his opinion involve a utility or other easement, forward a copy of the plan to the local supplier of electric power, The New Brunswick Telephone Company, Limited or other agency, as the case may be;
(i) shall, when a tentative plan received by him involves a request for variance, forward a copy of the plan and the request to the advisory committee or regional service commission;
(j) shall, within six weeks of receiving an application for approval of a tentative plan that complies with the requirements of section 49,
(i) approve it subject to such terms and conditions as he considers necessary to assure compliance with the by-law, or
(ii) reject it by notice in writing to the person submitting it, stating the features of the plan objected to;
(k) shall approve a subdivision plan that
(i) subject to subsection (3), conforms with this Act and any municipal plan, rural plan, basic planning statement, development scheme, urban renewal scheme, or any zoning, deferred widening or controlled access street by-law or regulation, which affects development under section 81, or
(ii) conforms as mentioned in subparagraph (i) except for a variance permitted by the advisory committee or regional service commission;
(l) shall examine each instrument presented to him, and any plan attached thereto, that transfers an interest in land in the area affected by the by-law and, on the basis of such information as may appear to him to be sufficient,
(i) shall, in the manner mentioned in subsection (5),
(A) approve it for registration in the registry office, or
(B) exempt it under section 48,
(ii) shall refuse to approve it under clause (i)(A) if
(A) such approval is prohibited by subsection 47(4), or
(B) it transfers an interest in a parcel of land that, together with other parcels, comprises the minimum lot area required by by-law for a development on one of the parcels and that was so required by by-law, and comprised part of such lot area, at the time the development was undertaken, or
(iii) may refuse to approve it under clause (i)(A), or to exempt it under section 48, if it
(A) fails to refer or refers inaccurately to the municipal, rural community or territorial division within which the land is situated, or
(B) fails to include relevant information mentioned in subsection 47(6) respecting filed subdivision plans; and
(m) may, with respect to powers vested in him or her by this Act pertaining to the administration of a subdivision bylaw,
(i) if he or she is a planning director as defined in the Regional Service Delivery Act, a rural community planning director or a municipal planning director, delegate such powers, or
(ii) if he or she is a rural community planning officer or a municipal planning officer, delegate such powers when authorized in writing by the Minister.
44(2)A subdivision plan that involves the laying out of public or future streets, the setting aside of land for public purposes, a variance or, in the opinion of the development officer, a utility or other easement, shall not be approved under paragraph (1)(k) unless
(a) in the case of the laying out of streets or the setting aside of land for public purposes,
(i) with respect to a subdivision plan of land not in an integrated survey area, it has been assented to under section 55 or 56, or
(ii) with respect to a subdivision plan of land in an integrated survey area, the person authorized to assent thereto has advised the development officer in writing that he accepts it in principle and is prepared to assent thereto when certain conditions permitted hereunder to be required are met;
(b) in the case of a variance, the variance is permitted by the advisory committee or regional service commission in writing; and
(c) in the case of a utility or other easement, the easement appears on the plan and
(i) the development officer has been advised by the agency concerned that it is satisfied with it, or a time limit in excess of two weeks determined by such officer for receiving such advice has expired without objection being received, or
(ii) it is approved by the development officer where objection is received under subparagraph (i).
44(3)With respect to a subdivision plan of land in an integrated survey area, an adjusted grid distance that reduces a dimension shown thereon below that required by a by-law hereunder, but not more than one-quarter of one per cent below such required dimension, does not constitute a violation of the requirements of the by-law.
44(4)A development officer may approve for registration any instrument presented to him, and any plan attached thereto, that transfers an interest in land not affected by a subdivision by-law.
44(5)An approval or exemption mentioned in subparagraph (1)(l)(i) or in subsection (4) shall be signified by a certificate endorsed on the instrument, dated and signed by the development officer, or by a person to whom such power is delegated pursuant to paragraph (1)(m), and an instrument purporting to be so certified shall be accepted by the registrar without further acknowledgement or proof of the certification.
44(6)Where a development officer purports in good faith to certify an instrument pursuant to this section, such instrument shall be deemed to have been properly certifiable by him.
44(7)The Director may, with respect to an instrument that transfers an interest in land in a town, village or rural community that is providing its own land use planning service, exercise the authority of a development officer under paragraph (1)(l), other than the authority contained in clause (1)(l)(i)(B).
1972, c.7, s.44; 1973, c.22, s.2; 1977, c.10, s.16; 1994, c.95, s.17; 1999, c.28, s.6; 2001, c.31, s.3; 2005, c.7, s.12; 2007, c.59, s.12; 2010, c.31, s.25; 2012, c.44, s.4
Payment for services
45(1)Subject to subsection (4), where a subdivision by-law contains a provision under paragraph 42(3)(i) and land affected by it is proposed for subdivision, if the land has the benefit of facilities mentioned in that paragraph which were installed after the coming into force of this Act and paid for by, or are the financial responsibility of, the municipality, rural community or a person other than a present or previous owner or tenant of the land, the development officer shall not approve the plan unless the person proposing the subdivision pays or agrees to pay to the municipality or rural community, as the case may be, an amount equal to the initial cost of the facilities, or equal to the share of the cost required to be paid by him or her under the provision.
45(2)Money received by a municipality or a rural community in respect of a cost required to be paid under subsection (1) shall be paid
(a) where the municipality or rural community bears the cost,
(i) into a special account to be applied against the cost, or
(ii) into the general revenue account, if the cost has been completely met; or
(b) where a person other than the municipality or rural community bears the cost, to that person or anyone lawfully claiming under him.
45(3)Money owing to a municipality or a rural community under an agreement pursuant to subsection (1) constitutes a debt due to the municipality or rural community and may be recovered in an action in any court of competent jurisdiction.
45(4)Subsection (1) does not apply where the cost of facilities mentioned therein has been met under a local improvement by-law.
45(5)With respect to facilities mentioned in subsection (1), the initial cost is deemed to include the actual cost of providing such facilities and of any engineering and surveying costs in connection therewith.
1972, c.7, s.45; 2005, c.7, s.12
Approval of variances
46(1)An advisory committee or regional service commission may
(a) subject to such terms and conditions as it considers fit, permit such reasonable variance from the requirements of the subdivision by-law as, in its opinion, is desirable for the development of land in accord with the general intent of the by-law and any plan, statement or scheme hereunder affecting the land,
(b) require that the subdivision plan include any terms and conditions attached to a variance permitted under paragraph (a), or
(c) by resolution effective only on the filing of an approved amending subdivision plan in the registry office, withdraw any or all terms and conditions included under paragraph (b).
46(1.1)A development officer may
(a) subject to the terms and conditions that he or she considers fit, permit a reasonable variance from the requirements of a subdivision by-law falling within paragraph 42(3)(b) or (h) if the development officer is of the opinion that the variance is desirable for the development of land and accords with the general intent of the by-law and any plan, statement or scheme affecting the land,
(b) require that the subdivision plan include any terms and conditions attached to a variance permitted under paragraph (a), or
(c) withdraw any or all terms and conditions included under paragraph (b) and the withdrawal shall only be effective on the filing of an approved amending subdivision plan in the registry office.
46(2)Where requested to permit a variance under paragraph (1)(a) or (1.1)(a), the advisory committee, regional service commission or development officer may give notice to owners of land in the neighborhood of the proposed subdivision in respect of which the variance is requested
(a) describing the land comprised in the proposed subdivision,
(b) describing the variance requested, and
(c) giving the right to make representation to the advisory committee, regional service commission or development officer in connection therewith within the time limit set out in the notice.
46(3)If an advisory committee or a regional service commission has made a determination with respect to a request for a variance under subsection (1), a request with respect to the same variance shall not be made to a development officer.
46(4)If a development officer has made a determination with respect to a request for a variance under subsection (1.1), a request with respect to the same variance shall not be made to an advisory committee or a regional service commission.
1972, c.7, s.46; 2007, c.59, s.13; 2012, c.44, s.4
Subdivision plan
47(1)In this section, “filed subdivision plan” means a plan of subdivision
(a) approved by a development officer under this Act, or by the Provincial Planning Board or a commission under a previous Act, and filed in the registry office, or
(b) filed in the registry office when there was no subdivision by-law or regulation under this or a previous Act applicable to the land comprised in the plan.
47(2)Where a filed subdivision plan indicates a parcel of land was created for the purpose of being added to an adjoining parcel,
(a) if the conveyance to effect that purpose has taken place, the parcels so joined shall constitute one parcel for purposes of subdivision, and
(b) if the conveyance to effect that purpose has not taken place, the parcel so created shall not be developed as a separate parcel, but may be added to an adjoining parcel within the subdivision for purposes of a development.
47(3)Subject to this section, a person shall not subdivide land affected by a subdivision by-law or regulation under this or a previous Act by any means other than a filed subdivision plan, except to the extent that the subdivision is exempted under section 48.
47(4)Where a person subdivides land mentioned in subsection (3) in contravention of the provisions of that subsection, an instrument in respect of such land shall not be approved under clause 44(1)(l)(i)(A) until such contravention has been rectified.
47(5)This section does not apply to
(a) the subdividing of a building or structure, or
(b) the transfer, without further subdividing, of an interest in
(i) a remnant of a parcel of land out of which the land comprised in a filed subdivision plan formed a part,
(ii) a remnant of a parcel of land described in an instrument exempted under section 48 and filed in the registry office, or
(iii) a parcel of land that is the subject matter of a separate deed or a separate description in a deed of two or more parcels if the deed was registered in the registry office before a subdivision by-law or regulation affecting the land was enacted or made under this or a previous Act.
47(6)Every instrument transferring an interest in a parcel of land appearing on and created by a filed subdivision plan, or in a remnant described in subsection (5), shall
(a) refer to the plan by its name and registration data, or to the exempted instrument by its registration data,
(b) in the case of such parcel,
(i) identify it by its identifying numbers or letters on the plan, and
(ii) except or reserve any easement shown on the plan that affects the parcel, and
(c) in the case of such remnant, state that the land is a remnant of the land of which the subdivision or the land described in the exempted instrument formed a part,
but failure to comply with this subsection shall not invalidate an instrument.
47(7)Except where the operation of this subsection would affect rights acquired by any person from a judgment or order of any court given or made in any litigation or proceedings commenced on or before December 31, 1972, any provision of a previous Act relating to the subdividing of land that purported to prevent the creation or transfer of an interest in land shall be deemed not to have had such effect.
1972, c.7, s.47; 1974, c.6 (Supp.), s.5; 1989, c.8, s.2
Deeds for exempt parcels
48(1)Subject to paragraph 44(1)(l), a development officer may exempt from a subdivision by-law or the provisions of this Act respecting subdivisions
(a) any subdivision in which each parcel of land is not less than two hectares in area and in which any parcel that fronts on a publicly owned street has a rectangular width of at least one hundred fifty metres at the minimum set-back established by a by-law or regulation hereunder affecting the land;
(b) the conveyance of a part of a parcel of land that is distinct from other parts thereof by reason of separate possession, occupation or use and was so distinct immediately before a subdivision by-law or regulation affecting the land was enacted or made under this or a previous Act;
(c) the conveyance of a part of a parcel of land that is distinct from other parts thereof by reason of a publicly owned street, or a railway, lake or river, separating it from such other parts;
(d) any transaction that has the effect of granting the use of or an interest in land directly or by right of renewal for a period not exceeding ten years in total;
(e) the conveyance of any easement or right-of-way;
(f) a sale pursuant to a power in a mortgage made before a subdivision by-law or regulation affecting the land was enacted or made under this or a previous Act;
(g) a conveyance in respect of a part of a parcel of land being acquired by the Crown for purposes of highway right-of-way, whether or not such part is intended to be used in its entirety for such purposes; and
(h) anything added under subsection (2).
48(2)The Lieutenant-Governor in Council, on the recommendation of the Minister, may add to the list of exemptions under subsection (1).
48(3)A development officer may refuse to grant an exemption permitted under subsection (1) if, in his opinion and in the opinion of the advisory committee or regional service commission, the proposed exemption
(a) is undesirable for development of the land or neighboring land, or
(b) is not in accord with the general intent of the Act or a by-law hereunder.
1972, c.7, s.48; N.B. Reg. 73-48; 1974, c.6 (Supp.), s.6; 1977, c.M-11.1, s.4; 1977, c.10, s.17; 2005, c.7, s.12; 2012, c.44, s.4
Tentative subdivision plan
49(1)Unless exempted therefrom under paragraph 44(1)(b), a person seeking approval of a subdivision plan shall submit to the development officer a written application for approval of a tentative plan therefor and as many copies of the tentative plan as such officer requires, drawn to the scale and size required for a subdivision plan.
49(2)Subject to paragraph 44(1)(c), a tentative plan shall be marked “Tentative Plan” and shall show
(a) the proposed name of the proposed subdivision;
(b) the boundaries of that part of the plan sought to be approved marked by a black line of greater weight than all other lines on the diagram of the plan;
(c) the locations, widths and names of existing streets on which the proposed subdivision abuts, and the locations, widths and proposed names of the proposed streets therein;
(d) the approximate dimensions and layouts of the proposed lots, blocks, land for public purposes and other parcels of land, and the purposes for which they are to be used;
(e) the nature, location and dimensions of any existing restrictive covenant, easement or right-of-way affecting the land proposed to be subdivided, and of any easement intended to be granted within the proposed subdivision;
(f) natural and artificial features such as buildings, railways, highways, watercourses, drainage ditches, swamps and wooded areas within or adjacent to the land proposed to be subdivided;
(g) the availability and nature of domestic water supplies;
(h) the nature and porosity of the soil;
(i) such contours or elevations as may be necessary to determine the grade of the streets and the drainage of the land;
(j) the services that are or will be provided by the municipality or rural community to the land proposed to be subdivided;
(k) where necessary to locate the proposed subdivision in relation to existing streets and prominent natural features, a small key plan acceptable to the development officer showing such location;
(l) plans for landscaping and tree planting;
(m) the proposed location of every building; and
(n) any further information required by the development officer to assure compliance with the subdivision by-law.
49(3)The approval of a tentative plan shall not be shown on the plan.
49(4)A tentative plan shall not be accepted for filing in the registry office.
1972, c.7, s.49; 1977, c.10, s.18
Tentative subdivision plan
50The approval of a tentative plan or an exemption from submitting a tentative plan is null and void at the expiration of one year from the day such approval or exemption was given, except as regards any portion of the land in respect of which a subdivision plan corresponding to the tentative plan or the instructions of the development officer pursuant to paragraph 44(1)(b) has been approved by such officer.
1972, c.7, s.50; 2007, c.59, s.14
Lay-out of streets and lots
51(1)A person whose tentative plan is approved by the development officer, or who is exempted by such officer under paragraph 44(1)(b) from submitting a tentative plan, may proceed in one or more stages to lay out the streets, lots, blocks, land for public purposes and other parcels of land in accordance with the tentative plan or the instructions of the development officer, and prepare a subdivision plan accordingly in the manner described in section 52.
51(2)A person acting under this section shall,
(a) with respect to a subdivision of land not in an integrated survey area, use legal survey monuments of a design and standard set out in the subdivision by-law or, if not so set out, that are acceptable to the development officer within limits permitted to be so set out, and shall stake each parcel of land, or
(b) with respect to a subdivision of land in an integrated survey area, use legal survey monuments as required by regulation under the Surveys Act.
1972, c.7, s.51
Content of subdivision plan
52(1)Subject to this section, a person mentioned in subsection 51(1) may submit to the development officer a written application for approval of a subdivision plan for all or any part of the land comprised in the tentative plan or in relation to which the exemption mentioned in that subsection was granted, which shall be accompanied by,
(a) with respect to a subdivision of land not in an integrated survey area,
(i) a print thereof on opaque linen,
(ii) a duplicate copy thereof on transparent linen or other transparent material acceptable to such officer, and
(iii) a number of paper prints thereof as required by such officer; or
(b) with respect to a subdivision of land in an integrated survey area,
(i) a plan thereof on tracing linen or polyester-based film, and
(ii) a number of paper prints thereof as required by such officer.
52(2)A subdivision plan mentioned in subsection (1) shall be drawn
(a) with respect to a subdivision of land not in an integrated survey area,
(i) to a scale having a ratio of one to one thousand, except where, in the opinion of the development officer, a ratio of one to five hundred, one to two thousand or one to five thousand is more practical,
(ii) on one of the following sizes of material, in centimetres:
(A) 21.5 × 35.5,
(B) 35.5 × 43, or
(C) 50 to 75 × 50 to 100, and
(iii) in such manner that the space left on the face of the plan for the approval of the development officer, any assent of the Minister of Transportation and Infrastructure, a council or a rural community council and the particulars of filing in the registry office, is acceptable to the development officer as to adequacy and location; or
(b) with respect to a subdivision of land in an integrated survey area,
(i) to a scale having a ratio of one to five hundred, except where, in the opinion of the development officer, a ratio of one to one thousand, one to two thousand or one to five thousand is more practical,
(ii) on a size of material mentioned in clause (a)(ii)(B) or (C), and
(iii) in such manner that a space of twenty-five millimetres is left along the short side of the plan for binding and, immediately adjacent thereto, a further space of eighty millimetres is left for endorsement blocks.
52(3)A subdivision plan shall set out
(a) in the title block,
(i) the name of the subdivision,
(ii) where required by the development officer, the name of a street to which the subdivision has access,
(iii) the municipality, rural community or parish, and the county and province in which the land is located, and
(iv) the scale and date of the survey;
(b) the name of the owner of the land and the details of registration of the deed or deeds of the land;
(c) the north point of the plan, indicated by an arrow oriented other than toward the lower edge of the plan or extension thereof;
(d) the distances from and the relation to existing survey monuments and markers;
(e) the boundaries of that part of the plan sought to be approved marked by a black line of greater weight than all other lines on the diagram of the plan;
(f) the area of land to be vested in the municipality or rural community as streets, indicated by the names of the streets and, in smaller print immediately below each name, the word “public” and, if a portion only of the street shown on the plan is to be so indicated, the portion shall be denoted by a line drawn across and at right angles to the street at each terminus thereof identified by an arrow;
(g) the area of land to be vested in the municipality or rural community as future streets, indicated by the words “future street”;
(h) the area of land to be conveyed as land for public purposes, indicated by the words “land for public purposes”;
(i) the area of land with respect to which easements are to be granted, indicated by words describing the purpose thereof;
(j) subject to subsection (4), the boundaries of streets and other parcels of land by means of solid black lines;
(k) the location, dimensions and names of streets abutting the subdivision;
(l) the nature, location and dimensions of any existing restrictive covenant, easement or right-of-way;
(m) such numbers and letters as are necessary to accurately identify each lot or other parcel of land and, where available, the civic number thereof;
(n) the location and description of legal survey monuments;
(o) any applicable proposed street boundary or building line established by a deferred widening by-law;
(p) any building line or set-back affecting the subdivision pursuant to a provision under paragraph 42(3)(h) or to an agreement under section 101; and
(q) except in the case of a subdivision plan of land in a municipality or rural community that indicates, to the satisfaction of the development officer, the location of the subdivision on the diagram of the plan, the location of the proposed subdivision in relation to existing streets or prominent natural features on a small key plan draw to a scale having a ratio of not less than one to twenty thousand.
52(4)With respect to the boundaries of streets and other parcels of land set out on a subdivision plan, the plan shall,
(a) in the case of a plan of land not in an integrated survey area, show azimuths and distances and, for circular curves, the radii, central angles and arcs thereof, and
(b) in the case of a plan of land in an integrated survey area, show information required by regulation under the Surveys Act.
52(5)A subdivision plan shall be
(a) prepared especially for the subdivision;
(b) marked “Subdivision Plan”;
(c) signed by the owner of the land in the subdivision or a person who, but for this or a previous Act, would be the owner, or the authorized agent of either of them;
(d) certified as to its correctness and sealed by a New Brunswick Land Surveyor; and
(e) accompanied by
(i) such proof of title as the development officer considers advisable, and
(ii) if the plan is signed by an agent as permitted under paragraph (c), a copy of a written authorization therefor.
52(6)Except with respect to a subdivision of land in an integrated survey area, where any information required by subsection (4) is shown on a plan filed in the registry office, the subdivision plan or a plan mentioned in paragraph 58(1)(a) may, in lieu of setting forth such information, indicate that such information appears on the plan so filed, referring to such plan by its name, date and registration data.
52(7)Subject to any other Act or to a delegation pursuant to paragraph 42(3)(l), the naming of streets in subdivisions is subject to the approval of the council or rural community council, in consultation with the advisory committee or regional service commission.
1972, c.7, s.52; 1977, c.M-11.1, s.4; 1977, c.10, s.19; 2005, c.7, s.12; 2010, c.31, s.25; 2012, c.44, s.4
Approval of subdivision plan
53(1)The approval of a subdivision plan by the development officer shall be signified on the face of the plan by a stamp or certificate of approval, dated and signed by such officer, and a plan so approved shall be received and filed by the registrar, and in an integrated survey area by the Director of Surveys, without acknowledgment or proof of the signature.
53(2)An approval signified on a subdivision plan pursuant to subsection (1) is deemed to approve only that part of the plan the boundaries of which are marked as described in paragraph 52(3)(e).
53(3)Except where such approval is ineffective pursuant to section 55 or 56, a subdivision plan approved by a development officer is valid when filed in the registry office in accordance with this Act.
53(4)On the approval of a subdivision plan, the development officer shall
(a) with respect to a plan of land not in an integrated survey area,
(i) if sections 55 and 56 do not apply thereto, return the opaque linen print, the duplicate copy and at least two other signed prints thereof to the person who submitted it, or
(ii) if an assent under section 55 or 56 appears on the plan, return only the opaque linen print and the duplicate copy thereof to the person who submitted it; or
(b) with respect to a plan of land in an integrated survey area, deliver the plan, on tracing linen or polyester-based film, to the Director of Surveys.
1972, c.7, s.53
Filing of subdivision plan
54(1)No subdivision plan of land in respect of which a subdivision by-law or regulation is in effect may be filed in the registry office unless
(a) it bears the approval of the development officer, and
(b) with respect to a plan of land in an integrated survey area, it bears the approval of the Director of Surveys.
54(2)Unless filed in the registry office prior to the expiration of the period, the approval of a subdivision plan by a development officer is valid for one year only.
54(3)With respect to a subdivision of land not in an integrated survey area, a person tendering a subdivision plan for filing in the registry office shall therein,
(a) if sections 55 and 56 do not apply thereto, deposit the opaque linen print, the duplicate copy and at least two other prints thereof, all bearing the approval of the development officer, or
(b) if an assent under section 55 or 56 appears on the plan, deposit the opaque linen print, the duplicate copy and at least four other prints thereof, all bearing the approval of the development officer and the assent.
54(4)When a subdivision plan mentioned in subsection (3) is filed in the registry office, the registrar shall endorse the registration data on the face of each copy thereof presented and shall
(a) retain the opaque linen print in the registry office,
(b) transmit the duplicate copy to the development officer who approved the plan,
(c) deliver one copy to the Director of Assessment for the Province or a person designated by him,
(d) if the Minister of Transportation and Infrastructure, a council or a rural community council has assented to the plan, forward two copies to that Minister, the council or rural community council, as the case may be, and
(e) return the remaining copies to the person who tendered the plan for filing.
54(5)The development officer shall stamp each duplicate copy of a subdivision plan received under subsection (4) “For Official Use Only” and may use it for making copies for the advisory committee, regional service commission, council or rural community council, or their servants or agents, or for his own purposes, but shall not use it for making copies for any other person.
54(6)Where a subdivision plan in respect of land in an integrated survey area has been approved by the development officer and delivered by him to the Director of Surveys, such Director
(a) may, subject to paragraph (b) approve or reject such plan;
(b) shall not, if an assent under section 55 or 56 is required to make the approval of the development officer effective, approve it until he has received a document purporting to be such assent;
(c) shall, when he receives a document purporting to be an assent under section 55 or 56, or purporting to be an assent and certification under section 55, note the assent and any certification on the plan;
(d) shall, if he rejects it because of a change to be made in it that would substantially affect the location of a street shown thereon, or would reduce the dimensions of any other parcel of land so shown by more than one per cent, remove from the plan the endorsement of approval of the development officer and forward the plan to the surveyor who certified it;
(e) shall, where a plan is rejected for reasons mentioned in paragraph (d), advise the development officer and the surveyor of the reasons for the rejection;
(f) shall, if he rejects it for any reason other than one mentioned in paragraph (d), ensure no change is made therein that would produce an effect described in that paragraph;
(g) shall, when he approves the plan,
(i) endorse his approval thereon,
(ii) prepare and submit two prints thereof to the registrar,
(iii) on the return of a print submitted under subparagraph (ii), note the registration data on the plan,
(iv) prepare and deliver a reproducible transparency of the plan to the development officer where a permanent arrangement to do so is authorized in writing by the Minister or where the development officer requests a particular transparency,
(v) prepare and distribute prints of the plan as follows:
(A) where no transparency has been delivered pursuant to subparagraph (iv), one to the development officer,
(B) two to the council, rural community council or Minister whose assent appears thereon, and
(C) where a certification respecting a water or sanitary sewer system appears on the plan, one to the Minister, and
(D) such number to the person whose signature appears thereon as owner or agent as he shall request, and
(vi) file it in his office.
54(7)When the registrar receives the prints mentioned in subparagraph (6)(g)(ii), he shall endorse the registration data thereon and return one print to the Director of Surveys.
54(8)The person whose signature appears on the plan as owner or agent shall be responsible for the cost of registering the plan and the making of prints mentioned in paragraph (6)(g).
1972, c.7, s.54; 1973, c.22, s.3, 4; 1977, c.10, s.20; 1986, c.8, s.23; 1989, c.55, s.26; 1992, c.2, s.12; 1998, c.41, s.23; 2000, c.26, s.48; 2005, c.7, s.12; 2007, c.59, s.15; 2010, c.31, s.25; 2012, c.44, s.4
Approval of streets
55(1)When a subdivision plan of land in a rural community that has not enacted a by-law under subsection 190.079(1) of the Municipalities Act with respect to the service of roads and streets provides for the laying out of public or future streets or a subdivision plan of land not in a municipality provides for the laying out of public or future streets, approval of the plan by the development officer shall not be given, if the land is not in an integrated survey area, or shall not be effective, if the land is in an integrated survey area, until the plan has been assented to by the Minister of Transportation and Infrastructure.
55(2)The assent of the Minister of Transportation and Infrastructure under this section shall not be given until,
(a) the regional service commission has recommended the location of the streets mentioned in subsection (1) to the Minister of Transportation and Infrastructure;
(b) where the installation of a water or sanitary sewer system or both is proposed to provide a water or sanitary sewer service to lots in the subdivision,
(i) such system has been installed under the supervision of a person designated by the Minister, in accordance with the plan for the system as approved by all authorities required by any Act or regulations to approve such plan, or
(ii) a bond, money or a certified cheque, in a form and amount satisfactory to the Minister, has been deposited with the Minister or at his direction to guarantee the installation of the system in accordance with the plan mentioned in subparagraph (i) or the installation or operation of the system in accordance with an agreement with respect thereto,
and until such agreement as the Minister may require has been entered into with respect to the installation or operation of the system;
(c) where streets are to be public,
(i) the streets have been constructed under the supervision of a person designated by the Minister of Transportation and Infrastructure in accordance with standards approved by him, or
(ii) a bond satisfactory to the Minister of Transportation and Infrastructure has been posted guaranteeing construction of the streets in accordance with standards approved by him; and
(d) where the requirements of paragraph (b) have been satisfied, the Minister or a person designated by him for that purpose so certifies
(i) on the face of the plan, if the subdivision plan is in respect of land not in an integrated survey area, or
(ii) on a separate document, if the subdivision plan is in respect of land in an integrated survey area.
55(3)The assent of the Minister of Transportation and Infrastructure under this section shall be signed by such Minister or a person designated by him for that purpose, and such assent
(a) with respect to a subdivision of land not in an integrated survey area,
(i) shall be endorsed on the face of the subdivision plan, or
(ii) where such assent is in respect of a plan filed before the coming into force of this Act, shall be on a separate document; or
(b) with respect to a subdivision of land in an integrated survey area, shall be on a separate document.
55(4)The filing of a separate document purporting to be an assent under this section shall be noted on the relevant subdivision plan by the registrar and upon such filing the land indicated on the subdivision plan as streets shall vest in the Crown, in the manner set out in subsection (5).
55(5)Subject to subsection (6), when a subdivision plan has been assented to by the Minister of Transportation and Infrastructure, approved by the development officer and, with respect to a plan of land in an integrated survey area, approved by the Director of Surveys, the land indicated on the plan as streets, on the filing of the plan in the registry office, vests in the Crown in the following manner:
(a) land indicated thereon as a public street vests as a highway under the Highway Act, and
(b) land indicated thereon as a future street vests as property acquired for highway purposes under the Highway Act.
55(5.1)When a subdivision plan has been assented to by the Minister of Transportation and Infrastructure, approved by the development officer and, with respect to a plan of land in an integrated survey area, approved by the Director of Surveys, the easements designated on the plan in accordance with the regulations vest the rights prescribed by regulation in the Crown on the filing of the plan in the registry office.
55(5.2)When a subdivision plan has been assented to by the Minister of Transportation and Infrastructure, approved by the development officer and, with respect to a plan of land in an integrated survey area, approved by the Director of Surveys, the easements designated on the plan in accordance with the regulations vest the rights prescribed by regulation in the public utility indicated on the plan on the filing of the plan in the registry office.
55(5.3)For the purposes of subsection (5.2) and subsection 56(4.02), “public utility” means any person owning, operating, managing or controlling an undertaking for the supply of electricity, gas or telephone service.
55(6)Where the requirements of subparagraph (2)(b)(i) have been satisfied in respect of a water or sanitary sewer system or both certified under paragraph (2)(d),
(a) the Minister shall file in the registry office a document signed by him stating that he accepts the system so certified on behalf of the Crown; and
(b) on the filing mentioned in paragraph (a), the system so certified, together with the land on or within which the system was installed, as shown on the plan referred to in the document, vests in the Crown in right of New Brunswick as represented by the Minister, free from any lien or encumbrance, whenever created, but this paragraph shall be deemed not to affect the administration and control of land that is vested in the Crown pursuant to subsection 55(5) as a highway or for highway purposes.
55(7)A document mentioned in subsection (6) shall be received and filed by the registrar without acknowledgement or proof of the signature of the Minister and, upon such filing, the registrar shall endorse the fact thereof on the plan referred to in the document.
1972, c.7, s.55; 1973, c.22, s.5; 1974, c.6 (Supp.), s.7; 1977, c.10, s.21; 1980, c.9, s.2, 3; 1983, c.18, s.8; 1984, c.39, s.3; 1994, c.95, s.18; 2000, c.26, s.48; 2005, c.7, s.12; 2010, c.31, s.25; 2012, c.44, s.4; 2014, c.43, s.1
Approval of streets
56(1)When a subdivision plan of land in a municipality provides for the laying out of public or future streets or the setting aside of land for public purposes, approval of the plan by the development officer shall not be given, if the land is not in an integrated survey area, or shall not be effective, if the land is in an integrated survey area, until the plan has been assented to by the council.
56(1.1)When a subdivision plan in a rural community that has enacted a by-law under subsection 190.079(1) of the Municipalities Act with respect to the service of roads and streets provides for the laying out of public or future streets, approval of the plan by the development officer shall not be given, if the land is not in an integrated survey area, or shall not be effective, if the land is in an integrated survey area, until the plan has been assented to by the rural community council.
56(1.2)When a subdivision plan in a rural community provides for the setting aside of land for public purposes, approval of the plan by the development officer shall not be given, if the land is not in an integrated survey area, or shall not be effective, if the land is in an integrated survey area, until the plan has been assented to by the rural community council.
56(2)An assent under this section shall not be given until
(a) the advisory committee or regional service commission, subject to subsection (4.1), has recommended the location of the streets mentioned in subsection (1) or (1.1), or the land for public purposes mentioned in subsection (1) or (1.2), or both, as the case may be, or such recommendation has been rejected by majority vote of the whole council or the whole rural community council, as the case may be, and
(b) any provision pursuant to paragraph 42(3)(i) has been complied with.
56(3)The clerk of the municipality or rural community clerk, as the case may be, shall certify an assent under this section by signing it, and the assent shall be under seal and
(a) with respect to a subdivision of land not in an integrated survey area, shall be endorsed on the face of the subdivision plan, or
(b) with respect to a subdivision of land in an integrated survey area, shall be on a separate document.
56(4)When a subdivision plan has been assented to under this section, approved by the development officer and, with respect to a plan of land in an integrated survey area, approved by the Director of Surveys, the land indicated on the plan as being streets or land for public purposes, on the filing of the plan in the registry office, vests in the municipality or rural community, as the case may be, in the following manner:
(a) land indicated thereon as a public street vests as a municipal or rural community street, as the case may be,
(b) land indicated thereon as a future street vests as property acquired for purposes of a future street, and
(c) land indicated thereon as land for public purposes vests as such.
56(4.01)When a subdivision plan has been assented to under this section, approved by the development officer and, with respect to a plan of land in an integrated survey area, approved by the Director of Surveys, the easements designated on the plan in accordance with the regulations vest the rights prescribed by regulation in the municipality or rural community, as the case may be, on the filing of the plan in the registry office.
56(4.02)When a subdivision plan has been assented to under this section, approved by the development officer and, with respect to a plan of land in an integrated survey area, approved by the Director of Surveys, the easements designated on the plan in accordance with the regulations vest the rights prescribed by regulation in the public utility indicated on the plan on the filing of the plan in the registry office.
56(4.1)In making a recommendation in respect of streets under paragraph (2)(a), an advisory committee or regional service commission shall give consideration to
(a) the topography of the land proposed for subdivision,
(b) the creation of lots suitable for the intended use thereof,
(c) having street intersections and interceptions as nearly as possible being at right angles, and
(d) the provision of
(i) convenient access to the proposed subdivision and to lots within it, and
(ii) convenient further subdividing of the land proposed for subdivision or the subdividing of adjoining land.
56(5)Repealed: 1974, c.6 (Supp.), s.8
1972, c.7, s.56; 1973, c.22, s.8; 1974, c.6 (Supp.), s.8; 1977, c.10, s.22; 1983, c.18, s.9; 1984, c.39, s.4; 2005, c.7, s.12; 2012, c.44, s.4; 2014, c.43, s.2
Amendments to subdivision plan
57(1)A subdivision plan filed in the registry office may be amended by a new subdivision plan, marked “Amending Subdivision Plan” and bearing the same name as the plan being amended, that indicates the manner in which the land affected by the amendment is proposed to be subdivided, and such new plan shall be dealt with in respect to approvals hereunder and filing in the registry office in the same manner as other subdivision plans, except that an amending plan shall set out the date and registration data of the plan being amended.
57(2)When an amending subdivision plan is filed in the registry office, the registrar shall endorse on the plan amended the fact of such amendment, the date and registration data of the amending plan and the name of the surveyor who certified such amending plan.
57(3)On the filing of an amending subdivision plan in the registry office,
(a) if such plan has been assented to under section 55, approved by the development officer and, with respect to a plan of land in an integrated survey area, approved by the Director of Surveys, land indicated thereon as being streets vests in the Crown in the manner described in subsection 55(5), but land that had vested in the Crown for such purposes, and is now intended thereunder to be used for other purposes, vests in the person whose land vests in the Crown on such filing;
(b) if such plan has been assented to under section 56, approved by the development officer and, with respect to a plan of land in an integrated survey area, approved by the Director of Surveys, land indicated on the plan as being streets or land for public purposes vests
(i) in the case of a municipality, in the municipality in the manner described in subsection 56(4), but land that had vested in the municipality for a public purpose, and is now intended to be used for other purposes, vests in the person whose land vests in the municipality on filing, or
(ii) in the case of a rural community, in the rural community in the manner described in subsection 56(4), but land that had vested in the rural community for a public purpose, and is now intended to be used for other purposes, vests in the person whose land vests in the rural community on filing; and
(c) if such plan has been approved and signed by the Minister pursuant to clause 77(8)(a)(ii)(B), approved by the development officer and, with respect to a plan of land in an integrated survey area, approved by the Director of Surveys, land indicated thereon as being land for public purposes vests in the Crown for such purposes, but land that had vested in the Crown for such purposes, and is now intended thereunder to be used for other purposes, vests in the person whose land vests in the Crown on such filing.
1972, c.7, s.57; 1974, c.6 (Supp.), s.9; 1977, c.10, s.23; 2005, c.7, s.12
Subdivision plan by municipality or rural community
58(1)With respect to land not in an integrated survey area, where a purchase or other acquisition of the land by a municipality or rural community that has a subdivision by-law in force would subdivide land, the council or rural community council, as the case may be, may, in lieu of complying with any other provision of this Act,
(a) prepare a plan setting out, mutatis mutandis, relevant matters mentioned in subsection 52(3), and certified as to its correctness and sealed by a New Brunswick Land Surveyor;
(b) submit a copy of the plan mentioned in paragraph (a) to the development officer;
(c) file in the registry office an opaque linen print, a duplicate copy on transparent linen or other transparent material, and at least one other copy for the plan mentioned in paragraph (a) after
(i) ten clear days have elapsed since the date the plan was submitted to the development officer if no recommendation concerning the plan is made to the council or rural community council, as the case may be, by the development officer,
(ii) the plan has been altered in accordance with recommendations pursuant to subparagraph (i), or
(iii) the council or rural community council, as the case may be, has, by resolution passed by a majority of the whole council or whole rural community council, rejected the recommendations mentioned in subparagraph (i); and
(d) send to the development officer a duplicate copy on transparent linen or other transparent material endorsed by the registrar.
58(2)Where a plan mentioned in subsection (1) has the effect of altering any subdivision plan filed in the registry office,
(a) the council or rural community council, as the case may be, shall on such plan refer to any plan so altered of which it has knowledge, and
(b) when it is filed in the registry office, the registrar shall on each plan so altered endorse the fact of the alteration, the name, date and registration data of the altering plan and the name of the surveyor who certified it.
1972, c.7, s.58; 2005, c.7, s.12; 2007, c.59, s.16
BUILDING BY-LAW
Building permits
59(1)Subject to this section, a council or rural community council may enact a building by-law to prescribe standards for the building, locating or relocating, demolishing, altering, structurally altering, repairing or replacing, or any combination thereof, of a building or structure.
59(2)In relation to work mentioned in subsection (1), a by-law under this section may
(a) prohibit the undertaking or continuing of such work in violation of standards prescribed by the by-law, and
(b) prescribe a system of permits for such work, their terms and conditions, the conditions under which they may be issued, suspended, reinstated, revoked and renewed, their form and the fees therefor.
59(3)Subject to subsection (4), in prescribing standards under subsection (1), a council or rural community council
(a) shall adopt by reference or otherwise the National Building Code, or a portion thereof, in relation to
(i) buildings, and
(ii) structures for which standards are therein provided;
(b) shall adopt a supplementary building code approved under subsection (6) or, if no code has been so approved, prescribe reasonable standards that may have been so approved and designate classes of buildings to which the standards shall apply; and
(c) may prescribe any reasonable standards in relation to structures for which standards are not provided under paragraph (a).
59(4)Where a code is adopted under this section, a council or rural community council shall not adopt any penalty clause or, by reference, any administrative procedure contained therein.
59(5)Where a building by-law is in effect, no wiring permit pursuant to regulation under the Electrical Installation and Inspection Act may be issued in respect of a development unless the applicant therefor delivers a copy of the building permit for such development.
59(6)For the purpose of making public buildings accessible to and usable by physically handicapped persons, the Lieutenant-Governor in Council may by regulation approve a building code, for adoption under subsection (3), supplementary to the National Building Code.
1972, c.7, s.59; 1974, c.6 (Supp.), s.10; 1987, c.6, s.9; 2005, c.7, s.12; 2014, c.43, s.3
DEFERRED WIDENING BY-LAW
Altering of streets and building lines
60(1)Where the council of a municipality determines that land is required for the purposes of widening, altering or diverting an existing street, or of constructing a new street, it may by a deferred widening by-law
(a) state its intention of acquiring land for the purposes of widening, altering or diverting an existing street, or of constructing a new street;
(b) set out the proposed boundaries of the existing or new street;
(c) establish building lines for such widened, altered, diverted or new street; and
(d) prohibit the placing, erecting, altering or repairing of anything on land between the street and a building line mentioned in paragraph (c).
60(2)Any street line set out, building line established or land proposed to be acquired under a deferred widening by-law shall be shown on a map or plan that is
(a) attached to and forms part of the by-law;
(b) under the seal of the municipality; and
(c) certified by signing by the clerk of the municipality.
60(3)A by-law under this section shall be consistent with any applicable regional plan, rural plan under subsection 27.2(1), municipal plan, basic planning statement, development scheme or urban renewal scheme.
1972, c.7, s.60; 1973, c.22, s.9; 1982, c.3, s.9; 1994, c.95, s.19
Amendment and filing
61(1)When a deferred widening by-law is filed in the registry office, no person may, unless permitted under subsection (2), place, erect, alter or repair anything on land described in paragraph 60(1)(d).
61(2)Notwithstanding any provision of a deferred widening by-law, the council may permit, on land described in paragraph 60(1)(d),
(a) such repairs as it considers fit, and
(b) the placing, erecting or altering of a building or structure if the owner of the land consents to make such land available to the council in accordance with terms and conditions as may be agreed in writing.
61(3)The provisions of subsection 32(6) with respect to an agreement apply mutatis mutandis to an agreement under this section.
61(4)When a by-law repealing a deferred widening by-law is filed in the registry office pursuant to 69(1)(b), upon such filing any agreement made under subsection (2) shall cease to have effect except as to any rights which have accrued thereunder.
1972, c.7, s.61; 1974, c.6 (Supp.), s.11; 1977, c.10, s.24
Acquisition of land
62(1)The council may, at any time after the filing of a deferred widening by-law in the registry office, proceed to acquire any land it proposed to acquire under the by-law.
62(2)Where the owner of land proposed to be acquired under a deferred widening by-law requests the council in writing at any time after the filing of the by-law in the registry office to purchase the land, and such land is free of buildings and structures, subsection 61(1) shall cease to apply to the land at the expiration of six months from the day the request is made.
1972, c.7, s.62
Valid for five years
63(1)Subject to subsection 62(2), a deferred widening by-law shall cease to have effect at the expiration of five years from the day it was filed in the registry office, except as to the payment for land acquired thereunder.
63(2)Notwithstanding subsection (1), a council may extend the period of effectiveness of a deferred widening by-law by re-enacting or replacing such by-law.
1972, c.7, s.63
Application of by-law making authority to a rural community
63.1Sections 60 to 63 apply with the necessary modifications to a rural community council.
2005, c.7, s.12
CONTROLLED ACCESS STREET BY-LAW
Access to streets
64(1)Subject to this section, the council of a municipality or a rural community council may by a controlled access street by-law
(a) declare all or any part of any existing or proposed publicly owned street to be a controlled access street, and
(b) subject to such exceptions as are set out in the by-law, in respect to a street mentioned in paragraph (a),
(i) restrict access thereto, and
(ii) prohibit any development on properties abutting thereon that, in the opinion of the advisory committee or regional service commission, would interfere in any way with the use of such street.
64(2)Any property that would have no access to a street as the result of a controlled access street by-law shall, subject to subsection (3),
(a) retain an access at a place approved by the advisory committee or regional service commission, or
(b) be provided by the municipality or rural community, as the case may be, with an alternative access to another street at a place approved by the advisory committee or regional service commission.
64(3)An access mentioned in subsection (2) shall have such width as the council determines.
64(4)A by-law under this section shall be consistent with any applicable regional plan, municipal plan, rural plan under subsection 27.2(1) or 77.2(1), basic planning statement, development scheme or urban renewal scheme.
1972, c.7, s.64; 1973, c.22, s.10; 1977, c.10, s.25; 1982, c.3, s.9; 1994, c.95, s.20; 2005, c.7, s.12; 2012, c.44, s.4
FEES
2007, c.59, s.17
Fees
64.1(1)The council of a municipality or a rural community council may by by-law prescribe fees for the following community planning and development services provided by a municipality, rural community or regional service commission:
(a) providing a zoning confirmation letter;
(b) providing a letter confirming that a use of land, a building or a structure is in compliance with a community planning and development by-law;
(c) processing and considering applications for an authorization pursuant to a by-law under paragraph 34(3)(h);
(d) processing and considering requests under section 35; and
(e) examining an instrument under paragraph 44(1)(l).
64.1(2)If a fee is prescribed under subsection (1) and collected by a regional service commission, the fee shall be paid to the municipality or rural community in the region.
2007, c.59, s.17; 2012, c.44, s.4
ENACTMENT, AMENDMENT, REPEAL
AND REVIEW OF BY-LAWS
Enactment procedure
65(1)Subject to this section, the provisions of section 12 of the Municipalities Act apply to the enactment of a by-law hereunder.
65(1.1)The provisions of subsection 12(1.1) of the Municipalities Act do not apply to the enactment of a by-law hereunder.
65(2)Where a proposed by-law would adopt a document containing a municipal plan, rural plan under subsection 27.2(1), basic planning statement or development or urban renewal scheme, it shall be sufficient compliance with subsection (1) if only those parts of such document that comprise the proposed plan, statement or scheme are read in their entirety.
65(3)Where this Act provides that to enact a by-law a majority of the whole council must vote in favour thereof, it shall be sufficient compliance with such provision if a majority of the whole council votes in favour of the by-law on third reading by title.
65(4)Notwithstanding any by-law, unless otherwise ineligible, the mayor or other presiding officer may vote once on any motion where a majority vote of the whole council is required.
1972, c.7, s.65; 1977, c.M-11.1, s.4; 1994, c.95, s.21
Voting procedure
66(1)A council shall request in writing, before enacting a by-law hereunder, the written views of the advisory committee or regional service commission on
(a) any proposed by-law in respect of which such views have not been given previously, and
(b) any change made in a proposed by-law subsequent to a giving of views by the advisory committee or regional service commission.
66(2)A by-law enacted hereunder by a council mentioned in subsection (1) is not valid unless
(a) the views mentioned in that subsection have been requested, and
(b) if the by-law fails to give effect to the written views of the advisory committee or regional service commission, a majority of the whole council votes in favour of the by-law.
66(3)The advisory committee or regional service commission shall be deemed to have approved a proposed by-law if it fails to give the views requested thereon under subsection (1) within thirty days of such request, or within such longer period as the council may decide.
1972, c.7, s.66; 1974, c.6 (Supp.), s.12; 2012, c.44, s.4
Validity date
67(1)Subject to subsection 23(7),
(a) with the exception of a subdivision or building by-law, a flood risk area by-law or a by-law to establish a planning advisory committee, no by-law hereunder is valid unless the procedure set out in section 68 is complied with; and
(b) no by-law hereunder is valid unless the requirements of paragraph 69(1)(b) are complied with.
67(2)A by-law enacted hereunder shall come into force when filed in the registry office in accordance with paragraph 69(1)(b) or on such date subsequent to such filing as the by-law provides.
1972, c.7, s.67; 1973, c.22, s.11; 1979, c.9, s.3
Public notice
68(1)With respect to a by-law under this Act other than a by-law mentioned in paragraph 67(1)(a), the council shall
(a) by resolution, fix a day and place for the consideration of objections to the proposed by-law, and
(b) subject to subsection (7),
(i) if a daily newspaper is circulated in the municipality, publish twice a notice in the form described in subsection (2) of its intention of considering the enacting of the by-law, the first of such notices to be published not less than twenty-one and not more than thirty days before the day fixed pursuant to paragraph (a), and the second not less than four days and not more than seven days before such day, or
(ii) if a weekly newspaper is circulated in the municipality, publish twice a notice in the form described in subsection (2) of its intention of considering the enacting of the by-law, the first of such notices to be published not less than twenty-one and not more than thirty days before the day fixed pursuant to paragraph (a), and the second not less than four days and not more than eleven days before such day.
68(2)A notice under paragraph (1)(b)
(a) shall set forth a description of the area affected by the by-law, which shall where feasible, in the case of a zoning by-law or zoning provisions in a rural plan under subsection 27.2(1), refer to street names and civic numbers;
(b) shall state a place where and the hours during which the by-law may be inspected by an interested person, and the time and place set by the council for the consideration of written objections to the by-law;
(c) shall set forth the person to whom written objections may be sent; and
(d) may, in the case of an amendment or repeal, state briefly the reasons for it or an explanation thereof.
68(3)Where a notice has been published under paragraph (1)(b) in respect of a proposed by-law, the council shall
(a) make suitable provision for inspection of the by-law by the public at the time and place set out in the notice, and
(b) before enacting the by-law, hear and consider written objections to it.
68(4)Any person who wishes to speak for or against written objections is entitled to be heard at the time and place fixed pursuant to subsection (1) for consideration of such objections.
68(5)Where, subsequent to the publishing of a notice under paragraph (1)(b), the council substantially amends the proposed by-law, the provisions of this section apply mutatis mutandis to the amendment.
68(6)The council is not required to vote on the by-law on the day fixed under subsection (1) for the consideration of objections to it, but the by-law shall not become valid unless, within six months after the day that the first notice was published under subsection (1), it is
(a) enacted, and
(b) except a zoning by-law, subdivision by-law, building by-law, deferred widening by-law, controlled access street by-law or amendment to the zoning provisions in a rural plan under subsection 27.2(1), submitted for the approval of the Minister.
68(7)Where it is proposed to amend a zoning by-law or a rural plan under subsection 27.2(1) for the re-zoning of an area of land, the council is not required to publish a second notice under paragraph (1)(b) if
(a) the owners of land within the area and within one hundred metres thereof, other than a person applying for the re-zoning, are advised in writing of the proposed amendment, or
(b) a notice of the proposed amendment is posted in a prominent place on the property proposed to be re-zoned.
1972, c.7, s.68; 1973, c.22, s.12; 1977, c.M-11.1, s.4; 1984, c.39, s.5; 1986, c.21, s.1; 1994, c.95, s.22; 1995, c.37, s.2
Approval by Minister
69(1)With respect to any by-law enacted hereunder, and any municipal plan, rural plan under subsection 27.2(1), basic planning statement or development or urban renewal scheme adopted thereby, the council shall
(a) subject to subsection (1.1), apply to the Minister for approval of the document as conforming with the requirements of the following provisions of this Act:
(i) section 16.1;
(ii) paragraph 23(2)(a);
(iii) subparagraphs 23(5)(a)(i), (ii), (iii) and (iv);
(iv) clauses 23(5)(a)(vi)(A), (B), (E), (I) and (J);
(v) paragraphs 27.2(2)(a) and (b);
(vi) paragraphs 29(2)(a), (b) and (c);
(vii) paragraphs 69(2)(a) and (b); and
(viii) paragraphs 77(2.3)(a) and (b).
(b) file in the registry office a certified copy thereof that bears, if required, the approval of the Minister;
(c) publish a notice in a newspaper circulated in the municipality, stating
(i) where the approval of the Minister is required, the Minister’s action with respect thereto, and
(ii) information as to the filing thereof under paragraph (b); and
(d) where the approval of the Minister is required, transmit a copy of a notice under paragraph (c) to the Minister.
69(1.1)Paragraph (1)(a) does not apply to a zoning by-law, subdivision by-law, building by-law, deferred widening by-law, controlled access street by-law or amendment to the zoning provisions in a rural plan under subsection 27.2(1).
69(2)An application under paragraph (1)(a) shall be accompanied by
(a) two copies, certified as correct by the clerk, of the by-law and any municipal plan, rural plan under subsection 27.2(1), basic planning statement or development or urban renewal scheme adopted thereby;
(b) a statutory declaration by the clerk of compliance with sections 66 and 68; and
(c) a copy of any report on which any plan, statement or scheme mentioned in paragraph (a) is based.
69(3)Where a by-law hereunder, or any municipal plan, rural plan under subsection 27.2(1), basic planning statement or development or urban renewal scheme adopted thereby, is approved by the Minister, such by-law, plan, statement or scheme shall not be invalid by reason only of failure to comply with a requirement with respect to the content thereof.
1972, c.7, s.69; 1974, c.6 (Supp.), s.13; 1977, c.10, s.26; 1994, c.95, s.23; 1995, c.37, s.3; 2007, c.59, s.18
Approval of zoning by-law amendment
70Where written objection to a proposed by-law to amend a zoning by-law or zoning provisions in a rural plan under subsection 27.2(1) is signed by the owners of at least one-third of the area of the land within the area affected thereby and within one hundred metres thereof, but not including land owned by any person who made application for such amendment, and is presented to the council not less than two days before the hearing required by section 68, the by-law shall not become valid unless a majority of the whole council votes in favour of it.
1972, c.7, s.70; 1977, c.M-11.1, s.4; 1984, c.39, s.6; 1994, c.95, s.24
Construction freeze
71(1)Subject to subsection (2), where the council fixes the day and place under paragraph 68(1)(a) for consideration of objections to a proposed zoning, deferred widening or controlled access street by-law or proposed zoning provisions in a rural plan under subsection 27.2(1), it may by resolution set out the proposed by-law or rural plan or the principles to be contained in it and prohibit any development in the area affected by the proposed by-law or rural plan until the by-law or rural plan becomes valid or fails to become valid because of the operation of subsection 68(6) or because the council does not meet the requirements of paragraph 69(1)(b) within a reasonable time.
71(2)Where a resolution is adopted under subsection (1), such resolution ceases to be effective after fourteen days from the day on which the resolution is adopted unless the first notice of intention of considering the passing of the by-law referred to in the resolution under paragraph 68(1)(b) is published prior to the expiration of fourteen days from the adoption of such resolution.
71(3)A rural community council may act by resolution under this section.
1972, c.7, s.71; 1977, c.10, s.27; 1986, c.21, s.2; 1994, c.95, s.25; 1999, c.28, s.7; 2005, c.7, s.12; 2007, c.59, s.19
Review of planning instruments
72(1)A by-law under this Act, a municipal plan, a rural plan under subsection 27.2(1), a basic planning statement or a development or urban renewal scheme may include a provision specifying when and how it shall be reviewed by council.
72(2)If a by-law, plan, statement or scheme includes a provision referred to in subsection (1), the provision shall require that council review the by-law, plan, statement or scheme not later than ten years from its commencement or the last review.
72(3)If a by-law, plan, statement or scheme does not include a provision referred to in subsection (1), council shall review the by-law, plan, statement or scheme not later than five years from its commencement or the last review.
72(4)An amendment of a by-law, plan, statement or scheme is not a review for the purposes of this section or a provision referred to in subsection (1).
72(5)Notwithstanding that a by-law, plan, statement or scheme includes a provision referred to in subsection (1), the Minister may require a council to review the by-law, plan, statement or scheme if the Minister considers a review necessary.
1972, c.7, s.72; 1994, c.95, s.26; 2007, c.59, s.20
Consultations by council
73The council may submit a proposed by-law, municipal plan, rural plan under subsection 27.2(1), basic planning statement or development or urban renewal scheme to the Director for his comments.
1972, c.7, s.73; 1994, c.95, s.27
Amendment or repeal of by-laws
74(1)Subject to this Act, a council may by by-law
(a) amend or repeal a by-law enacted or continued hereunder, or
(b) adopt an amendment to, or repeal, a municipal plan, rural plan under subsection 27.2(1), basic planning statement or development or urban renewal scheme adopted by by-law hereunder.
74(2)Except where otherwise provided, all provisions of this Act respecting a by-law or a municipal plan, rural plan under subsection 27.2(1), basic planning statement or development or urban renewal scheme adopted thereby, apply mutatis mutandis to a by-law, plan, statement or scheme amending or repealing it.
74(3)For the purposes of this section,
(a) a municipal plan mentioned in paragraph 100(1)(a) is deemed to have been adopted by by-law hereunder, and
(b) any revision or replacement of a zoning by-law or zoning provisions in a rural plan under subsection 27.2(1) is deemed to be an amendment.
1972, c.7, s.74; 1977, c.10, s.28; 1994, c.95, s.28; 1995, c.37, s.4
Injurious affection
75Land shall not be deemed to be injuriously affected by reason only of the enactment, making or continuing of a by-law or regulation hereunder, or the amendment or repeal thereof.
1972, c.7, s.75
Severability of by-law
76The provisions of a by-law hereunder are severable and the invalidity of any part of such by-law does not affect the validity of those provisions that are not dependent or conditional on the effectiveness of the invalid provision.
1972, c.7, s.76
Approvals for pipeline construction
76.01A development officer may grant approvals for pipeline construction for which he or she is the approving authority under the Pipeline Act, 2005.
1999, c.G-2.11, s.100; 2005, c.P-8.5, s.84
REGULATIONS
Fee regulations
76.1(1)The Lieutenant-Governor in Council may make regulations
(a) prescribing community planning and development services provided in unincorporated areas for which a regional service commission may charge fees;
(b) prescribing the amount of a fee for a service referred to in paragraph (a).
76.1(2)Notwithstanding the Financial Administration Act, if a fee is prescribed under subsection (1), the fee shall be paid to the regional service commission providing the prescribed service and shall be credited to the cost of the delivery of the land use planning service under subsection 27.2(2) of the Municipalities Act.
1994, c.95, s.29; 2007, c.59, s.21; 2012, c.44, s.4
Subject matter of regulations
77(0.1)Where a fee is prescribed under paragraph (1)(g.01), the fee shall be paid, notwithstanding the Financial Administration Act, to the regional service commission and shall be credited to the cost of the delivery of the land use planning service under subsection 27.2(2) of the Municipalities Act.
77(1)Subject to this section, the Lieutenant-Governor in Council may, on the recommendation of the Minister, make regulations respecting
(a) the setting back of buildings and structures from the boundaries of streets or classes of streets;
(b) the location, lay-out, equipment, standards and licensing of mobile home parks, the location and standards of mobile home sites, and the payment of fees by operators of mobile home parks;
(c) the location, dimensions, standards of construction of service stations, gas bars, car washes and automotive repair garages;
(d) the location, dimensions, standards of construction, purposes and licensing of public advertisement, and the payment of fees with respect thereto;
(e) the excavation of sand, gravel, clay, shale, limestone or other deposit for purposes of the sale or other commercial use of the material excavated;
(f) the subdividing of land;
(g) the building, locating or relocating, demolishing, altering, structurally altering, repairing or replacing, or any combination of such work, of buildings and structures, including, without limiting the generality of the foregoing, standards for such work and the prohibiting of the undertaking or continuing of such work in violation of such standards;
(g.01) development and building permits including, without limiting the generality of the foregoing, the application for such permits, the issuance, suspension, reinstatement or revocation of such permits, the terms and conditions of the issuance, suspension, reinstatement or revocation of such permits, the terms and conditions of such permits, the form of the application and such permits, the fees for the application and such permits, the fees for building inspection services and the provision of information with respect to such permits to the Executive Director of Assessment under the Assessment Act and the use to be made of such information;
(h) in any part of an area in which a regulation under paragraph (g) or (g.01) is in effect, the prohibiting of the issue of a wiring permit under the Electrical Installation and Inspection Act in respect of a development unless the applicant for the wiring permit delivers a copy of the development and building permit for such development;
(h.1) land use and development policies, including, without limiting the generality of the foregoing, policies respecting settlement patterns, commercial and industrial siting, flood plains and planning for coastal zones;
(i) in an area designated under subsection (2), anything, except a development scheme or urban renewal scheme, or any combination of things that a council is empowered to do by by-law under this Act;
(j) anything otherwise authorized by this Act.
77(1.1)Repealed: 1994, c.95, s.30
77(1.2)Repealed: 1994, c.95, s.30
77(1.3)Repealed: 1994, c.95, s.30
77(1.4)Repealed: 1994, c.95, s.30
77(1.5)Repealed: 1994, c.95, s.30
77(2)Subject to subsections (3) and (4), the Lieutenant-Governor in Council, on the recommendation of the Minister, may
(a) except in the case of a rural plan under subsection (2.1), designate any area or areas for the purpose of the application of a regulation under this section, thereby restricting, subject to paragraph (b), the application thereof accordingly; and
(b) with respect to a subdivision regulation, provide that the regulation applies throughout the Province exclusive of those areas identified in the regulation as not being subject to the regulation.
77(2.1)The Minister may make regulations respecting rural plans for unincorporated areas.
77(2.2)In a regulation under subsection (2.1), the Minister
(a) shall designate an area for the purpose of the application of the regulation, and
(b) may provide for anything that a council is empowered to do by by-law under this Act.
77(2.3)A regulation under subsection (2.1) shall contain
(a) statements of policy with respect to
(i) residential uses,
(ii) commercial uses,
(iii) institutional uses,
(iv) recreational facilities and public open spaces,
(v) resource uses,
(vi) protection of water supplies,
(vii) heritage buildings and sites of historical or archeological interest,
(viii) conservation of the physical environment, or
(ix) such other matters that the Minister deems necessary;
(b) such proposals as the Minister deems advisable for the implementation of the policies in the rural plan;
(c) zoning provisions that divide the area into zones, prescribe the purposes for which land, buildings and structures in any zone may be used and prohibit the use of land, buildings and structures for any other purpose; and
(d) a map showing the zones referred to in paragraph (c).
77(2.4)Subsections 34(3) to (9), except paragraphs 34(3)(c) and (j), and sections 35 to 39 apply with the necessary modifications to zoning provisions referred to in paragraph (2.3)(c).
77(2.5)Where there is a conflict between a policy or a proposal referred to in paragraphs (2.3)(a) and (b) and a zoning provision referred to in paragraph (2.3)(c), the policy or proposal prevails.
77(2.6)A regulation under subsection (2.1) may prescribe a fee for the amendment of zoning provisions in the regulation.
77(2.7)Repealed: 1999, c.28, s.8
77(2.8)Notwithstanding any other provision in this Act, the Minister shall not make a regulation under subsection (2.1) until after the fourteen days referred to in subsection (2.9) and, if written objections are submitted under subsection (2.9), the written objections are considered.
77(2.9)Any person who wishes to submit written objections in relation to objections raised on the day fixed for consideration of objections may do so by sending them to the Minister within fourteen days after that day.
77(2.91)Where the Minister substantially amends the proposed regulation under subsection (2.1) after the notice of the day for consideration of objections is published, section 68 and subsections (2.8) and (2.9) apply with the necessary modifications to the amendment.
77(2.92)Where a fee for the amendment of zoning provisions is prescribed in a regulation under subsection (2.1), the fee shall be paid, notwithstanding the Financial Administration Act, to the regional service commission and shall be credited to the cost of the delivery of the land use planning service under subsection 27.2(2) of the Municipalities Act.
77(2.93)The making of a regulation under subsection (2.1) does not commit the Province to undertake any proposal in the regulation.
77(2.94)Section 72 applies with the necessary modifications to a regulation under subsection (2.1).
77(2.95)The Regulations Act does not apply to a regulation under subsection (2.1).
77(2.96)A regulation under subsection (2.1) shall be published in The Royal Gazette but failure to make such publication does not affect the validity of the regulation.
77(3)A regulation under this section
(a) subject to paragraph (b), is not effective in a municipality;
(b) where made under paragraph (1)(a) or (f), is effective in a village that is within an area in which it applies if
(i) in the case of a regulation under paragraph (1)(a), no zoning by-law or zoning provisions in a rural plan under subsection 27.2(1) are in effect in the village, or
(ii) in the case of a regulation under paragraph (1)(f), no subdivision by-law is in effect in the village; and
(c) is not effective in a rural community that has a by-law in effect respecting the same matter as the regulation.
77(3.1)Notwithstanding subsection (3), a regulation under paragraph (1)(h.1) is effective in a municipality, rural community or unincorporated area specified in the regulation.
77(3.2)Notwithstanding any other provision in this Act, where there is a conflict between a regulation under paragraph (1)(h.1) and a regional plan, rural plan, municipal plan, basic planning statement or by-law or regulation under this Act, except a regulation establishing a provincial planning policy, the regulation under paragraph (1)(h.1) prevails.
77(4)With respect to a regulation under this section applicable in an area designated under subsection (2) or paragraph (2.2)(a), the regulation shall be consistent with a rural plan, if any, in effect in the area.
77(5)Where a regulation under this section is in effect, the planning director as defined in the Regional Services Delivery Act is the development officer and the powers vested in a regional service commission under paragraph (6)(a) or (c), (7)(b) or (8)(b) shall be deemed to be vested in the regional service commission.
77(6)With respect to a zoning regulation or to zoning provisions in a rural plan under this section
(a) the powers and functions mentioned in paragraphs 34(3)(g) and (h) or paragraph 34(4)(c), with respect to particular uses of land, may be vested in a regional service commission;
(a.1) if the power mentioned in subparagraph 34(3)(h)(i.1) is provided for in the regulation, a letter from the Minister shall satisfy the requirement of clause 34(3)(h)(i.1)(C);
(a.2) the power mentioned in paragraph 34(3)(h.1) may be vested in a regional service commission, and if it is, subsection 34(10) applies with the necessary modifications to the regulation;
(b) where a fee mentioned in paragraph 34(3)(j) is provided for in the regulation, it shall be paid into the Consolidated Fund, but may be returned in whole or in part on the advice of the Minister;
(c) the powers mentioned in sections 35 and 36, with respect to certain proposed uses and variance, shall be deemed to be vested in the relevant regional service commission or development officer, as the case may be; and
(d) where a person applies to the Minister to have an area of land re-zoned to permit the carrying out of a specific proposal,
(i) the Minister, in relation thereto, may make an order or enter into an agreement with such person, and
(ii) the provisions of section 39 with respect to a resolution or agreement thereunder apply mutatis mutandis to an order or agreement, respectively, hereunder.
77(7)A subdivision regulation under this section may
(a) subject to subsections (9) and (10), provide for
(i) the setting aside of land for public purposes at such location as may be approved by the Minister after consultation with the regional service commission, the indicating of such land on a subdivision plan and the vesting thereof in the Crown on the filing of the subdivision plan in the registry office, and
(ii) the paying, in the discretion of the Minister, of money in lieu of land mentioned in subparagraph (i);
(a.1) vest the power mentioned in paragraph 42(3)(c), with respect to access, in a regional service commission;
(b) vest the power mentioned in paragraph 42(3)(k), with respect to approval of a subdivision plan, in a regional service commission;
(b.1) prescribe the fee to be paid for the approval of a tentative plan, including prescribing different fees for the approval of tentative plans for type 1 subdivisions and type 2 subdivisions;
(c) provide that names of streets in subdivisions are subject to the approval of the regional service commission; and
(d) add to the list of exemptions mentioned in subsection 48(1) with respect to land in the area to which the regulation applies.
77(8)Where a subdivision regulation under this section is in effect,
(a) the provisions of section 44, with respect to a subdivision by-law, apply mutatis mutandis to such regulation, except that
(i) Repealed: 1994, c.95, s.30
(ii) where a plan involves the setting aside of land for public purposes, the plan shall not be approved unless
(A) the location of such land has been recommended by the regional service commission, and
(B) the plan has been approved and signed by the Minister,
(b) the powers mentioned in section 46, with respect to variance, are vested in the regional service commission or development officer, as the case may be; and
(c) sections 47 and 48 apply with the necessary modifications to such regulation.
77(9)Land vested in the Crown under this section shall be held undeveloped or developed for public purposes and may, if subsequently included within the bounds of a municipality or rural community, be conveyed to the municipality or rural community, as the case may be, and the land shall be subject to all provisions of this Act affecting land for public purposes vested in a municipality or rural community under this Act.
77(10)All money received by the Minister in lieu of land for public purposes or realized by him on the sale of such land is to be paid into a special account, and the money in that account is to be expended by the Minister for acquiring or developing land for public purposes, and
(a) pending such expenditure the money shall be invested in Authorized Trustee Investments and the earnings derived from such investments paid into the special account, and
(b) if a subdivision in respect of which money has been received is subsequently included within the bounds of a municipality or rural community, the portion of the money that remains unexpended, together with any increments that have accrued under paragraph (a), is to be paid to the municipality or rural community of which the subdivision becomes a part, and is to be treated by the municipality or rural community in the same manner as money received for a public purpose under a subdivision by-law.
77(11)Before recommending or making a regulation under this section, the Minister shall
(a) if the regulation would have effect in a region, request the regional service commission to give its views on the regulation,
(b) if the regulation is to be made under subsection (2.1) and would have effect in a local service district that has an advisory committee, request the advisory committee to give its views on the regulation, and
(c) follow, with the necessary modifications, the procedure preliminary to the enactment of a by-law under sections 67 and 68, except if the regulation is to be made under paragraph (1)(a), (b), (f), (g),(g.01) or (h).
77(11.1)Notwithstanding paragraph (11)(c), with respect to a zoning regulation under subsection (1) or a rural plan under subsection (2.1), the provisions of section 68 shall not be read as requiring the Minister to make available for public consideration the proposed rural plan or amendment if the Minister makes available for public consideration a written summary of the proposed rural plan or amendment.
77(12)Repealed: 1983, c.8, s.6
77(13)The Director shall file a copy of each regulation made under this section in the registry office for every county in which any land affected by the regulation is situated, but such filing shall not be a condition precedent to the coming into force of the regulation.
1972, c.7, s.77; 1974, c.6 (Supp.), s.14; 1977, c.10, s.29; 1983, c.8, s.6; 1984, c.39, s.7; 1987, c.6, s.9; 1989, c.8, s.3; 1994, c.48, s.7; 1994, c.95, s.30; 1999, c.28, s.8; 2001, c.31, s.4; 2003, c.1, s.1; 2005, c.7, s.12; 2007, c.58, s.5; 2007, c.59, s.22; 2012, c.44, s.4
Regulations respecting easements
77.1The Lieutenant-Governor in Council, on the recommendation of the Minister, may make regulations designating types of easements and prescribing the rights which these designated types of easements vest in the Crown, a municipality or a public utility and subsection 77(13) applies to such regulations.
1984, c.39, s.8
Regulations respecting approval of development
77.12The Lieutenant-Governor in Council, on the recommendation of the Minister, may make regulations
(a) prescribing matters that a development must be in conformity with before a building permit or a development and building permit may be issued under subsection 81(1); and
(b) respecting what may be considered by a development officer to be adequate proof that a development is in conformity with a matter prescribed under paragraph (a).
2007, c.59, s.23
RURAL PLANS FOR
RURAL COMMUNITIES
1994, c.95, s.31
Rural plans for rural communities
77.2(1)A rural community council may adopt by by-law a rural plan for the rural community.
77.2(2)Paragraph 77(2.2)(a) and subsections 77(2.3) to (2.91) apply with the necessary modifications to a rural plan under subsection (1).
77.2(3)Sections 65 to 76 apply with the necessary modifications to a rural plan under subsection (1).
77.2(4)The adoption of a rural plan does not commit the rural community council or the Province to undertake any proposal in the rural plan.
77.2(5)With respect to zoning provisions in a by-law under subsection (1),
(a) the powers and functions in paragraphs 34(3)(g) and (h) or paragraph 34(4)(c) with respect to particular uses of land may be vested in a regional service commission;
(a.1) where a person applies to a rural community council to have an area of land re-zoned to permit the carrying out of a specific proposal,
(i) the rural community council may act by resolution under section 39,
(ii) the Minister may enter into an agreement with the person respecting those matters set out in the resolution, and
(iii) the provisions of section 39 with respect to a resolution or agreement apply with the necessary modifications to a resolution or agreement, respectively;
(b) notwithstanding subsection (2), where the by-law provides that a developer may pay money instead of providing off-street parking under paragraph 34(3)(i), the money shall be paid, notwithstanding the Financial Administration Act, to the regional service commission and the regional service commission shall deal with the money in accordance with the directions of the rural community council and section 37;
(c) where a fee for amending the zoning provisions is provided for in the by-law, it shall be paid, notwithstanding the Financial Administration Act, to the regional service commission and shall be credited to the cost of the delivery of the land use planning service under subsection 27.2(2) of the Municipalities Act; and
(d) the powers in sections 35 and 36 with respect to certain proposed uses and variance shall be deemed to be vested in the relevant regional service commission.
77.2(6)The Regulations Act does not apply to a rural plan under subsection (1).
1994, c.95, s.31; 1999, c.28, s.9; 2005, c.7, s.12; 2012, c.44, s.4
ACQUISITION OF LAND
Expropriation by municipality or rural community
78(1)Subject to this section, a municipality or rural community may acquire by gift, purchase, expropriation or otherwise any land or interest in land required for the purpose of carrying out any proposal contained in a municipal plan, rural plan under subsection 27.2(1) or 77.2(1), basic planning statement or development or urban renewal scheme in effect in the municipality or rural community.
78(2)Land that may be acquired under subsection (1), or under subsection 62(1), includes
(a) the remnants of parcels, portions of which are essential to a purpose mentioned therein;
(b) any land that may be injuriously affected by carrying out a proposal mentioned therein;
(c) any land that, if allowed to be built upon without restriction, might become the site of buildings or structures that would prejudicially affect the full enjoyment of any building forming part of the proposed development or the architectural effect thereof; and
(d) any land that the council or rural community council, as the case may be, considers could be conveniently subdivided or re-arranged and developed as part of the proposal.
78(3)An expropriation under subsection (1) shall be undertaken in accordance with
(a) in the case of a municipality, section 8 of the Municipalities Act,
(b) in the case of a rural community, subsection 190.08(5) of the Municipalities Act.
1972, c.7, s.78; 1994, c.95, s.32; 2005, c.7, s.12
Expropriation by Minister
79(1)Subject to this section, the Minister may acquire by gift, purchase, expropriation or otherwise any land or interest in land required for the purpose of carrying out any proposal contained in a regional plan or rural plan under subsection 77(2.1), or in a regulation made pursuant to paragraph 77(1)(i).
79(2)The provisions of subsection 78(2) respecting land acquired by a municipality or rural community apply mutatis mutandis to land acquired under this section.
79(3)An expropriation under this section shall be undertaken in accordance with the Expropriation Act.
1972, c.7, s.79; 1994, c.95, s.33; 2005, c.7, s.12
Compensation
80(1)Subject to subsection (2), where a regional plan, rural plan, municipal plan, basic planning statement, development scheme or urban renewal scheme indicates that certain land may be required by the Minister, a municipality or a rural community for a purpose described in it, compensation for such land on expropriation shall not include any amount in respect of an unauthorized development on such land after the date of the statutory notice of intention to adopt, or to recommend adoption of, such plan, statement or scheme.
80(2)A judge of The Court of Queen’s Bench of New Brunswick, on the petition of a person affected by subsection (1), may order that compensation be paid in respect of a development mentioned therein if he is satisfied that such development was undertaken in good faith without knowledge of any restriction imposed thereon by this Act or any plan, statement or scheme hereunder.
1972, c.7, s.80; 1979, c.41, s.19; 1994, c.95, s.34; 2005, c.7, s.12
PROHIBITION RE DEVELOPMENT
Construction freeze
81(1)Except as otherwise provided in this section, no person shall undertake a development and no building permit or development and building permit shall be issued for such development unless the development officer having jurisdiction approves such development as conforming with, where it applies to the land on which the development is located,
(a) any municipal plan, basic planning statement, rural plan, development scheme or urban renewal scheme
(i) in effect,
(ii) in respect of which an adopting by-law has been the subject of a resolution under paragraph 68(1)(a); or
(iii) in respect of which the Minister has published a first notice under paragraph 68(1)(b);
(b) subject to paragraph (a), any zoning or deferred widening or controlled access street by-law or regulation
(i) in effect, or
(ii) in respect of which the council has adopted a resolution under section 71, or the Minister has published a first notice under paragraph 68(1)(b);
(c) a regulation under subsection 77(1)(h.1),
(i) in effect, or
(ii) in respect of which the Minister has published a first notice under paragraph 68(1)(b); and
(d) such other matters as may be prescribed by regulation.
81(2)The provisions of subparagraphs (1)(a)(ii) and (iii) and subparagraph (1)(b)(ii) cease to apply
(a) in the case of a resolution under paragraph 68(1)(a), when the by-law becomes valid or when it fails to become valid because of the operation of subsection 68(6) or because the council or rural community council, as the case may be, does not meet the requirements of paragraph 69(1)(b) within a reasonable time,
(b) in the case of a resolution under section 71, as provided in subsection (1) thereof, and
(c) in the case of a first notice, six months after the day the notice was published.
81(3)A permit under this Act, or the approval of a regional development, or a poster or placard in lieu thereof, shall be posted, in a prominent place on the property in respect of which the approval is given or the permit issued, by the person who obtained the approval or is named in the permit.
81(4)This section does not apply to types of development exempted pursuant to paragraph 34(3)(l) or by a regulation hereunder.
81(5)Where he has reason to believe that land has been subdivided in contravention of subsection 47(3), a development officer shall not approve a development in relation to such land unless he is satisfied that the person applying for such approval is
(a) the registered owner of an interest in the land to which the development relates, or
(b) the duly authorized agent of the owner mentioned in paragraph (a).
81(6)With respect to powers vested in him or her by this section, a development officer may
(a) if he or she is a planning director as defined in the Regional Service Delivery Act, a municipal planning director or a rural community planning director, delegate such powers, or
(b) if he or she is a municipal planning officer or a rural community planning officer, delegate such powers when authorized in writing by the Minister.
1972, c.7, s.81; 1977, c.10, s.30; 1994, c.95, s.35; 1999, c.28, s.10; 2005, c.7, s.12; 2007, c.59, s.24; 2012, c.44, s.4
Shopping centres
81.1No shopping centre may be developed in an unincorporated area except with the approval of the Lieutenant-Governor in Council upon recommendation of the Minister and in accordance with the terms and conditions specified by the Lieutenant-Governor in Council.
1979, c.9, s.4; 1986, c.8, s.23; 1989, c.55, s.26; 1992, c.2, s.12; 1998, c.41, s.23
Repealed
81.2Repealed: 1995, c.47, s.1
1981, c.11, s.1; 1986, c.8, s.23; 1989, c.55, s.26; 1992, c.2, s.12; 1995, c.47, s.1
Retail stores
81.3(1)No retail store having an area of fifteen hundred square metres or more of floor space may be developed in an unincorporated area except with the approval of the Lieutenant-Governor in Council upon the recommendation of the Minister and in accordance with the terms and conditions specified by the Lieutenant-Governor in Council.
81.3(2)Repealed: 1995, c.47, s.2
1989, c.8, s.4; 1989, c.55, s.26; 1992, c.2, s.12; 1995, c.47, s.2; 1998, c.41, s.23
PROVINCIAL PLANNING COMMITTEE
Repealed: 1994, c.95, s.36
1994, c.95, s.36
Repealed
82Repealed: 1994, c.95, s.37
1972, c.7, s.82; 1994, c.95, s.37
Repealed
83Repealed: 1994, c.95, s.38
1972, c.7, s.83; 1977, c.10, s.31; 1994, c.95, s.38
APPEALS TO THE ASSESSMENT AND
PLANNING APPEAL BOARD
2001, c.32, s.4
Repealed
84Repealed: 2001, c.32, s.4
1972, c.7, s.84; 2001, c.32, s.4
Procedure of the Board
85(1)Repealed: 2001, c.32, s.4
85(2)Repealed: 2001, c.32, s.4
85(3)Repealed: 2001, c.32, s.4
85(4)After consultation with the Board, the Lieutenant-Governor in Council may make regulations establishing the procedure of the Board respecting appeals commenced under this Act.
1972, c.7, s.85; 1977, c.10, s.32; 2001, c.32, s.4
85.1Repealed: 2001, c.32, s.4
1992, c.60, s.1; 2001, c.34, s.4
Jurisdiction
86(1)Except where the Board decides there are insufficient grounds for hearing an appeal, the Board shall hear and determine all appeals lodged pursuant to subsection (2).
86(2)Subject to subsection (3), any person including the Director may appeal to the Board if he alleges that
(a) the terms and conditions imposed or the prohibition of his development, pursuant to paragraph 34(4)(c), or the refusal to approve his regional or other development pursuant to subsection 19(1) or paragraph 81(1)(a) or (b) or to grant him a permit under this Act, or the terms and conditions attached to a permit,
(i) resulted from
(A) unreasonable use of powers mentioned in paragraph 34(4)(c), or
(B) misapplication of this Act or a by-law or regulation hereunder, or
(ii) would cause him special or unreasonable hardship not subject to alleviation under section 35 or 46, or which alleviation was unreasonably refused;
(b) the approval of another person’s regional or other development or the granting of a permit under this Act to such person
(i) resulted from misapplication of this Act or a by-law or regulation hereunder, or
(ii) would cause the person so alleging special or unreasonable hardship by reason of the effect of the proposed regional or other development on his land, building or structure;
(c) standards prescribed by a council under section 41, or the proposed action of a council thereunder,
(i) are unnecessary for the protection of the best interests of the municipality, or
(ii) would cause him unreasonable hardship; or
(d) the refusal of the development officer to approve a tentative plan under paragraph 44(1)(j) or a subdivision plan under paragraph 44(1)(k), or to approve an instrument for registration in the registry office under paragraph 44(1)(l) or to exempt an instrument under section 48, resulted from misapplication of this Act or a subdivision by-law hereunder.
86(3)The time limit for making an appeal under subsection (2) is
(a) under paragraph (a) thereof, sixty days from,
(i) subject to subparagraph (ii), the giving of the decision on the application, or
(ii) if terms and conditions are attached to the permit appealed, the date of such permit;
(b) under paragraph (b) thereof, ten days from the date of posting of the permit or approval pursuant to subsection 81(3);
(c) under paragraph (c) thereof, ten days from the giving of notice of the prescribed standards or proposed action; or
(d) under paragraph (d) thereof, sixty days from the date of the refusal mentioned therein.
1972, c.7, s.86; 1977, c.10, s.33; 1994, c.95, s.39; 2007, c.59, s.25
Orders and decisions
87(1)With respect to an appeal under paragraph 86(2)(a), the Board may
(a) dismiss it;
(b) allow it by approving the regional or other development or ordering the granting of the permit, as the case may be, subject to such terms and conditions as the Board considers necessary to ensure consistency with this Act or a by-law or regulation under this Act; or
(c) vary or revoke any terms and conditions attached to the permit.
87(2)With respect to an appeal under paragraph 86(2)(b), the Board may
(a) dismiss it;
(b) allow it by revoking the approval or the permit; or
(c) attach such terms and conditions to the approval or the permit as the Board considers necessary to ensure consistency with this Act or a by-law or regulation hereunder.
87(3)With respect to an appeal under paragraph 86(2)(c), the Board may affirm, revoke or vary the prescribed standards or proposed action.
87(4)With respect to an appeal under paragraph 86(2)(d), the Board may
(a) dismiss it; or
(b) order the development officer to approve, subject to such terms and conditions as the Board considers necessary to ensure consistency with this Act or a by-law or regulation hereunder, the tentative or subdivision plan, or to approve the instrument for registration in the registry office or to exempt it.
87(4.1)In addition to any other authority that the Board may have under this section, the Board may refer a matter back to the regional service commission, the council, the rural community council, the advisory committee or the development officer that made the decision that is the subject of the appeal.
87(4.2)If the Board refers a matter back under subsection (4.1), the Board may provide directions.
87(5)A decision of the Board, other than an order mentioned in subsection (6), shall take effect upon the expiration of four days from the depositing thereof in the mails in accordance with subsection 14(2) of the Assessment and Planning Appeal Board Act.
87(6)Where the Board orders the granting of a permit, the approval of a plan or instrument, or the exempting of an instrument, the responsible officer shall comply with such order forthwith and the order shall be effective upon such compliance.
87(6.1)If the Board refers a matter back under subsection (4.1), the regional service commission, the council, the rural community council, the advisory committee or the development officer, as the case may be, may affirm, revoke or vary the decision that is the subject of the appeal.
87(7)Notwithstanding this section, if, in the opinion of the Board, a particular provision of a by-law hereunder
(a) is not authorized by this Act, and
(b) is the basis for the action appealed,
the Board may allow an appeal in a manner mentioned in paragraph (1)(b) or (2)(b), or make an order mentioned in paragraph (4)(b).
1972, c.7, s.87; 1977, c.10, s.34; 1992, c.60, s.2; 1994, c.95, s.40; 2001, c.32, s.4; 2005, c.7, s.12; 2012, c.44, s.4
Orders and decisions
88(1)A decision of the majority of the members of the Board hearing an appeal is a decision of the Board.
88(2)Repealed: 2001, c.32, s.4
88(3)The Minister shall cause any decision of the Board considered to be of significance by the Minister to be annotated and shall cause the annotations and the decisions annotated to be published annually.
1972, c.7, s.88; 1989, c.8, s.5; 2001, c.32, s.4
Power of inspection
89(1)The Board may authorize any person to make an inquiry relating to any matter pending before it under this Act and, for such purpose, to enter upon and inspect any land, building or structure.
89(2)A report made pursuant to an inquiry under subsection (1) shall be made available at least three clear days prior to the hearing of an appeal and shall be received in evidence.
1972, c.7, s.89; 2001, c.32, s.4
Repealed
90Repealed: 2001, c.32, s.4
1972, c.7, s.90; 2001, c.32, s.4
ENFORCEMENT
Powers of Minister
91(1)The Minister shall not exercise any power under this section except with the approval of the Lieutenant-Governor in Council.
91(2)In addition to other powers vested in the Minister by this Act, he may, if satisfied that it is in the public interest to do so, quash any by-law enacted or continued hereunder by giving notice thereof in The Royal Gazette and filing a copy of such notice in the registry office.
91(3)If the Minister is satisfied that a council or rural community council is not conforming to a regional plan or is not conforming to or enforcing its municipal plan or a by-law adopted by it or its rural plan, the Minister may order the municipality or rural community to do so.
91(4)Where a council or rural community council fails to comply with an order of the Minister under this Act, the Minister, upon giving notice in The Royal Gazette and filing a copy of such notice in the registry office, may exercise all the powers conferred by this Act on the council or rural community council.
91(5)When exercising powers under subsection (4) in relation to a municipality, the Minister may
(a) Repealed: 2012, c.44, s.4
(b) if the municipality is providing its own land use planning service, appoint five persons to be the advisory committee for the municipality, but the council may appoint two additional persons to act on such committee, and such committee may exercise all the powers it would have if it was otherwise established under this Act.
91(5.1)When exercising powers under subsection (4) in relation to a rural community, the Minister may
(a) Repealed: 2012, c.44, s.4
(b) if the rural community is providing its own land use planning service, appoint five persons to be the advisory committee for the rural community, but the rural community council may appoint two additional persons to act on the advisory committee, and the advisory committee may exercise all the powers it would have if it was otherwise established under this Act.
91(6)The Minister may at any time revest the powers vested in him under subsection (4) in the council or rural community council, as the case may be, on giving notice thereof in The Royal Gazette and filing a copy of such notice in the registry office.
1972, c.7, s.91; 1994, c.95, s.41; 2005, c.7, s.12; 2012, c.44, s.4
Inspection of property
92(1)The Director, a development officer or a person authorized by the Minister, a council or a rural community council has the right to enter at all reasonable times upon any property within his jurisdiction for the purpose of making any inspection that is necessary for the administration of a by-law or regulation hereunder.
92(2)Where a person mentioned in subsection (1) is refused admission to any property within his jurisdiction, the Director may serve, or cause to be served, on the person having control of the property, a demand that the authorized person named therein be permitted to enter upon such property in accordance with subsection (1).
92(3)Service may be effected under subsection (2) by personal delivery to the person having control of the property or by depositing the demand in the mails in a prepaid registered envelope addressed to such person at such property.
92(4)The service of a demand by mail as provided for in subsection (3) is deemed to be complete upon the expiration of four days after the deposit thereof in the mails.
92(5)Proof of the service of a demand in either manner provided for in subsection (3) may be given by a certificate purporting to be signed by the Director that sets forth the name of the person on whom such demand was made and the time, place and manner of service thereof.
92(6)A document purporting to be a certificate of the Director made pursuant to subsection (5) shall
(a) be admissible in evidence without proof of the signature, and
(b) be conclusive proof that the demand was served on the person named in the certificate.
1972, c.7, s.92; 1986, c.6, s.6; 2005, c.7, s.12
Contravention of Act
93(1)If a development is undertaken in contravention of this Act, a by-law or regulation under this Act or terms and conditions imposed on the development, the Director, council or rural community council, as the case may be, or a development officer, building inspector or other person duly authorized by the Director, council or rural community council, may order
(a) cessation of the development,
(b) alteration of such development so as to remove the contravention, or
(c) the doing of anything required to restore the land, building or structure to its condition immediately prior to the undertaking of such development.
93(2)Subject to subsection (6), an order under subsection (1) shall
(a) be in writing and signed by the person making it,
(b) be served on the owner of the land, building or structure in respect of which the order is issued by personal delivery to him or by depositing the order in the mails in a prepaid registered envelope addressed to the owner at his last known address,
(c) state the grounds for requiring the action specified in the order, and
(d) state that the action specified in the order is to be taken within the period stated therein, such period being, in cases mentioned in paragraphs (1)(b) and (c) not less than fourteen days and not more than two months from the day the order is served or mailed.
93(3)The owner of property who is ordered to take action under this section shall comply with such order at his own expense.
93(4)Where an owner of property fails to comply with an order under this section, the Director, council or rural community council, as the case may be, may cause the ordered action to be undertaken and may recover the costs thereof from such owner in an action in any court of competent jurisdiction.
93(5)The costs incurred by the Director, council or rural community council under subsection (4) shall constitute a lien on the property concerned until recovered from the owner.
93(6)An order under this section requiring the cessation of a development may also be served by personal delivery to the person in charge of carrying out the development, or by depositing the order in the mails in a prepaid registered envelope addressed to such person at his last known address, and such person shall cease carrying out the development within the period stated in the order.
93(7)The service of an order by mail as provided for in subsections (2) and (6) is deemed to be complete upon the expiration of four days after the deposit thereof in the mails.
1972, c.7, s.93; 1977, c.10, s.35; 2005, c.7, s.12; 2007, c.59, s.26
Application to the Court
94(1)Where a person other than a municipality or a rural community
(a) contravenes or fails to comply with
(i) any provision of this Act or a by-law or regulation hereunder,
(ii) an order or demand made pursuant to this Act or a by-law or regulation hereunder,
(iii) any terms and conditions imposed pursuant to subsection 20(4), subsection 32(5), paragraph 34(3)(h), paragraph 34(4)(c), section 35, subsection 46(1), or subsection 87(1) or (2), or
(iv) a decision of the Board; or
(b) obstructs any person in the performance of his duty under this Act,
the municipality, rural community, Minister or a person designated for that purpose by the council, rural community council or Minister may make an application to The Court of Queen’s Bench of New Brunswick or a judge of that court for any of the orders described in subsection (2) whether or not a penalty has been provided for or imposed under this Act for such contravention, failure or obstruction.
94(2)In proceeding under this section, the judge may
(a) make an order restraining the continuance or repetition of the contravention, failure or obstruction;
(b) make an order directing the removal or destruction of any building or structure or part thereof in respect of which the contravention or failure has taken place, and that on failure to comply with such order a person designated by the council, rural community council or Minister, as the case may be, may remove or destroy such building or structure or part thereof at the expense of the owner; and
(c) make such other order as is required to enforce the provision in respect of which the action was instituted and as to costs and the recovery of the expense of the removal or destruction as the judge deems fit.
94(3)Proceedings under this section may be taken without joining the Attorney General.
94(4)The judge may act under this section at any time, notwithstanding it is vacation.
1972, c.7, s.94; 1974, c.6 (Supp.), s.15; 1979, c.41, s.19; 1981, c.6, s.1; 1991, c.27, s.9; 2005, c.7, s.12
Powers of the Court
94.1(1)Upon application of a person directly affected by the operation or non-enforcement of a by-law, resolution or order made under this Act by a council or rural community council, or of a resident of the municipality or rural community, The Court of Queen’s Bench of New Brunswick or a judge of that court may by order
(a) quash it in whole or in part for illegality, or
(b) declare that it is in force and effect, in whole or in part.
94.1(2)The Court of Queen’s Bench of New Brunswick or a judge thereof may refuse to hear an application made under subsection (1) where
(a) the by-law, resolution or order that is the subject of the application has been the subject of a previous application under that subsection, and
(b) in his opinion, the application raises substantially the same matters as were adjudicated upon in the previous application.
94.1(3)Proceedings under this section may be taken without joining the Attorney General.
1974, c.6 (Supp.), s.16; 1979, c.41, s.19; 1980, c.32, s.3; 1981, c.6, s.1; 2005, c.7, s.12
Offences and penalties
95(1)A person who violates or fails to comply with subsection 81(3) or any provision of a by-law or regulation made under this Act commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category B offence.
95(1.1)A person who
(a) does anything mentioned in subparagraph 94(1)(a)(iii), or
(b) violates or fails to comply with subsection 19(1), 40(5), 47(3), 61(1) or 81(1),
commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category C offence.
95(1.2)A person who
(a) does anything mentioned in subparagraph 94(1)(a)(ii) or 94(1)(a)(iv) or paragraph 94(1)(b), or
(b) violates or fails to comply with section 81.1 or subsection 81.3(1),
commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.
95(2)The conviction of a person for an offence under this Act does not operate as a bar to further prosecution for the continuation of such offence.
95(3)Subject to subsection (4), a prosecution for an offence under this Act shall not be commenced after six months from the discovery of such offence.
95(4)Where an appeal is made to the Board with respect to an alleged offence, the time period referred to in subsection (3) shall be extended by the elapsed time between
(a) the date of the notice of appeal, and
(b) the date of the final disposition of such appeal.
1972, c.7, s.95; 1977, c.10, s.36; 1990, c.61, s.24; 1995, c.47, s.3; 2007, c.59, s.27
Occupiers of Crown land
96Except as to the Crown or an agent thereof, a person shall not be exempt from compliance with this Act, a by-law or regulation hereunder, an order or demand or terms and conditions made or imposed pursuant thereto, or a decision of the Board, by reason only of the fact that the land, building or structure in respect of which he undertakes a development is owned by the Crown.
1972, c.7, s.96; 1977, c.10, s.37
Evidence
97(1)Notwithstanding the Evidence Act, proof of a by-law enacted hereunder may be given in proceedings in any court or tribunal by an affidavit of the clerk of the municipality or rural community clerk, as the case may be, that states
(a) that he has compared the copy of the by-law attached to the affidavit with the original by-law and confirms that it is a true copy thereof;
(b) that the requirements of the Municipalities Act and this Act with respect to the enactment of the by-law have been satisfied;
(c) the date on which the by-law was enacted as shown by the original record thereof;
(d) the date on which the by-law was approved by the Minister; and
(e) the date, time and place of filing of the by-law in the registry office.
97(2)An affidavit purporting to be made under subsection (1) that sets forth the information required by that subsection shall be prima facie evidence of the facts contained therein and shall be accepted in evidence without proof of the official character or handwriting of the deponent.
1972, c.7, s.97; 1999, c.28, s.12
Laying of information
98Proceedings in respect of an offence under this Act shall be commenced in the name of a person designated for that purpose by the Minister, council or rural community council, as the case may be.
1972, c.7, s.98; 1990, c.22, s.6; 2005, c.7, s.12
Ministerial enforcement of rural plans
98.1The Minister is authorized to enforce a rural plan by-law in an unincorporated area and sections 91 to 98 apply with the necessary modifications to the enforcement of a rural plan by-law by the Minister.
1999, c.28, s.13; 2005, c.7, s.12
GENERAL AND TRANSITIONAL
Transitional provisions
99The person holding the position of Director of the Planning Branch of the Department of Municipal Affairs on the coming into force of this Act shall be deemed to have been appointed Provincial Planning Director hereunder.
1972, c.7, s.99
Transitional provisions
99.1(1)Where, prior to April 30, 1999, a rural plan regulation or a rural plan by-law has been made in respect of an area designated for the application of a basic planning statement regulation or zoning regulation under subsection 77(2), the Lieutenant-Governor in Council may, without following the procedure under subsection 77(11), amend or repeal the basic planning statement regulation or zoning regulation made under subsection 77(2).
99.1(2)Where, after April 30, 1999, a rural plan by-law or a rural plan regulation is made and would apply to an area designated under subsection 77(2) or 77 (2.2), such rural plan by-law or rural plan regulation shall not be effective unless the prior basic planning statement, zoning or rural plan regulation has been amended or repealed under subsection (3).
99.1(3)The Lieutenant-Governor in Council or the Minister, as the case may be, may for the purposes of subsection (2) amend or repeal a basic planning statement, zoning regulation or rural plan regulation without following the procedure set out in subsection 77(11).
1999, c.28, s.14
Transitional provisions
100(1)Notwithstanding any provision hereunder, on the coming into force of this Act,
(a) a community plan in effect is deemed to be a municipal development plan hereunder;
(b) Repealed: 2012, c.44, s.4
(c) a municipal building by-law in effect that does not conform to the requirements of section 59 shall cease to have effect six months thereafter;
(d) other than by-laws elsewhere mentioned in this subsection, a municipal by-law in effect shall continue in effect to the extent that it could have been enacted hereunder; and
(e) regulations and by-laws of the Provincial Planning Board in effect are deemed to be regulations hereunder to the extent that they could have been made hereunder.
100(2)Where paragraph (1)(a) or (d) applies to a municipality providing its own land use planning service, the council thereof shall comply with section 16.
100(3)Where paragraph (1)(b) applies, the regional service commission shall comply with subsection 7(3).
1972, c.7, s.100; 2012, c.44, s.4
Agreement with developer
101(1)Where a developer proposes to establish conditions for a development that are additional to those required by a zoning by-law, zoning provisions in a rural plan or a subdivision by-law or regulation, or where terms and conditions are imposed under paragraph 34(4)(c), section 35, subsection 41.3(2), section 46 or paragraph 77(6)(a) or (c) or (8)(b) or 77.2(5)(a) or (c),
(a) the council of the municipality in which the development is proposed,
(a.1) the rural community council of a rural community in which the development is proposed, or
(b) the Minister, if the development is not within the bounds of a municipality or a rural community,
may enter into an agreement with the developer to assure the performance of the said conditions.
101(2)The provisions of subsection 32(6) with respect to an agreement apply mutatis mutandis to an agreement under this section.
101(3)If a council, a rural community council or the Minister has entered into an agreement under subsection (1), the council, rural community council or Minister, as the case may be, may
(a) upon breach of the agreement and after giving thirty days notice in writing to the developer, enter and perform any of the covenants or conditions in respect of which the breach exists, or
(b) at any time, discharge any covenant or condition of an agreement.
101(4)Where an agreement under this section is filed in the registry office, a discharge of any covenant or condition under paragraph (3)(b) shall be so filed within ten days thereof.
1972, c.7, s.101; 1977, c.10, s.38; 1979, c.9, s.5; 1994, c.95, s.42; 2005, c.7, s.12; 2007, c.59, s.28
N.B. This Act is consolidated to January 1, 2018.