Bill 43 - An Act to Amend the Highway Act

BILL 43

An Act to Amend the Highway Act

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Highway Act, chapter H-5 of the Revised Statutes, 1973, is amended

(a) by repealing the definition “traffic control device”;

(b) by adding the following definitions in alphabetical order:

“privately owned sign” means a sign, placard, billboard or any other form or device that is manufactured, installed and maintained by a business, organization or local government for the purposes of advertisement, announcement or direction; (panneau privé)

“regulated area” means an area 150 m wide that runs parallel to a provincial highway or provincial-municipal highway, measured from the near edge of the travelled portion of the highway; (aire réglementée)

“TOD sign” means a sign manufactured, installed and maintained by the Minister for the purposes of directing tourists to a tourism business; (panneau TD)

“traffic control device” means a traffic control device as defined in the Motor Vehicle Act; (dispositif de régulation de la circulation)

2 The Act is amended by adding after section 40 the following:

Unlawful display of privately owned sign in a regulated area

40.1 No person shall display or allow to be displayed a privately owned sign in a regulated area except in accordance with this Act and the regulations.

Permit to display privately owned sign in a regulated area

40.11( 1) Unless a privately owned sign is exempted by regulation from the application of this section, any person who wishes to display a privately owned sign in a regulated area shall apply to the Minister on a form provided by the Minister for a permit authorizing the display of the sign in the regulated area.

40.11( 2) The Minister may issue a permit authorizing the display of a privately owned sign in the regulated area if the Minister is satisfied that the applicant and the proposed sign will comply with this Act and the requirements prescribed by regulation.

40.11( 3) An application for a permit shall be submitted for each privately owned sign to be displayed in a regulated area.

40.11( 4) The Minister may impose any terms and conditions the Minister considers appropriate on the permit.

40.11( 5) A permit is valid for the period prescribed by regulation unless it is cancelled under subsection (6).

40.11( 6) The Minister may cancel a permit if

(a) the permit holder has violated or failed to comply with a term or condition of the permit or any provision of this Act or the regulations,

(b) the permit holder has failed to comply with a notice referred to in subsection 40.3(1) within 30 days after service of the notice, or

Removal of hazardous or distracting privately owned sign

40.2( 1) The Minister or an agent of the Minister may remove a privately owned sign displayed in a regulated area if the Minister is satisfied that

(a) the sign constitutes an immediate hazard or a visual distraction that interferes with the safe use of the highway, and

(b) the sign must be removed without delay.

40.2( 2) The Minister or an agent of the Minister may exercise the authority under subsection (1) with or without notice to the following persons:

(a) the owner of the land on which the privately owned sign is displayed;

(b) if a permit has been issued under section 40.11 for the sign, the permit holder; and

40.2( 3) For the purposes of subsection (1), the Minister or an agent of the Minister may enter any premises with or without the consent of the persons referred to in subsection (2).

40.2( 4) The Minister or an agent of the Minister may dispose of a privately owned sign removed under subsection (1) in the manner the Minister considers appropriate.

40.2( 5) No action, application or other proceeding lies or shall be instituted against the Minister or an agent of the Minister for anything done or purported to be done in good faith or anything omitted in good faith in the execution or intended execution of their powers under subsection (1).

Minister’s discretion – lawfully displayed privately owned sign

40.21( 1) Subject to section 40.3 and the regulations, if a privately owned sign is displayed in a regulated area in accordance with this Act and the regulations and the Minister considers it appropriate in the circumstances, the Minister may serve on the persons referred to in subsection (2) a notice directing them to do one or more of the following within 30 days after the notice is served:

(a) change the size or design of the privately owned sign;

(b) relocate the sign; or

40.21( 2) A notice under subsection (1) may be served on the following persons by personal delivery or by registered mail to the person’s latest known address:

(a) the owner of the land on which the privately owned sign is displayed;

(b) if a permit has been issued under section 40.11 for the sign, the permit holder; and

40.21( 3) Service by registered mail shall be deemed to have been effected three days after the date of mailing.

40.21( 4) A person to whom a notice under subsection (1) is served shall comply with the notice within 30 days after the notice is served.

40.21( 5) The Minister shall pay the actual cost incurred by the persons referred to in subsection (2) in complying with a notice under subsection (1), including the cost of changing, relocating or removing the privately owned sign.

Notice of unlawfully displayed privately owned sign

40.3( 1) If a privately owned sign is displayed in contravention of section 40.1, the Minister may serve on the persons referred to in subsection (2) a notice directing them to do one or more of the following within 30 days after the notice is served:

(a) change the size or design of the privately owned sign;

(b) relocate the sign;

(d) apply for a permit referred to in section 40.11; or

(e) take any other action necessary to ensure compliance with this Act and the regulations.

40.3( 2) A notice under subsection (1) may be served on the following persons by personal delivery or by registered mail to the person’s latest known address:

(a) the owner of the land on which the privately owned sign is displayed;

(b) if a permit has been issued under section 40.11 for the sign, the permit holder; and

40.3( 3) Service by registered mail shall be deemed to have been effected three days after the date of mailing.

40.3( 4) A person who fails to comply with a notice under subsection (1) within 30 days after the notice is served on them commits an offence.

40.3( 5) An offence under subsection (4) is a continuing offence and continues for each day during which the failure to comply continues.

40.3( 6) If the Minister directs that a privately owned sign be changed, relocated or removed, the actual costs of changing, relocating or removing the privately owned sign shall be paid by the person to whom the notice under subsection (1) is served.

Court order

40.4( 1) If a person to whom notice under subsection 40.21(1) is served fails to comply with the notice within 30 days after the notice is served, the Minister may make an application to The Court of King’s Bench of New Brunswick for any of the orders described in subsection (2).

40.4( 2) In a proceeding under subsection (1), the judge may make any of the following orders:

(a) an order restraining the continuance or repetition of the failure to comply with the notice;

(b) an order authorizing the Minister to change the size or design of the privately owned sign that is the subject of the proceeding or relocate or remove the sign and to enter any premises for the purposes of carrying out the order and taking any other action that the judge considers necessary to give effect to the order; or

(c) any other order that the judge considers necessary to give effect to, or ensure compliance with, all or any part of the notice in respect of which the proceeding was commenced.

40.4( 3) If a person to whom notice under subsection 40.3(1) is served fails to comply with the notice within 30 days after the notice is served, the Minister may make an application to The Court of King’s Bench of New Brunswick for any of the orders described in subsection (4).

40.4( 4) In a proceeding under subsection (3), the judge may make any of the following orders:

(a) an order restraining the continuance or repetition of the failure to comply with the notice;

(b) an order authorizing the Minister to relocate or remove the privately owned sign that is the subject of the proceeding and to enter any premises for the purposes of carrying out the order and taking any other action that the judge considers necessary to give effect to the order;

(c) any other order that the judge considers necessary to give effect to, or ensure compliance with, all or any part of the notice in respect of which the proceeding was commenced; or

(d) an order as to costs and the recovery of any expenses incurred in connection with the proceeding or carrying out the order that the judge considers appropriate.

Recovery of costs

40.5( 1) If a person fails to comply with a notice referred to in subsection 40.3(1) or with an order made under subsection 40.4(4), or both, and the Minister incurs any loss, damage, cost or expense as a result of the failure, whether directly or indirectly, the Minister may serve on the person a statement and demand for payment, and that amount may be recovered as a debt due to the Crown in a court of competent jurisdiction.

40.5( 2) A statement and demand for payment may be served on a person by personal delivery or by registered mail to the person’s latest known address.

40.5( 3) Service by registered mail shall be deemed to have been effected three days after the date of mailing.

40.5( 4) If more than one person fails to comply with a notice referred to in subsection 40.3(1) or with an order made under paragraph 40.4(4), or both, each person is jointly and severally liable for the amount referred to in subsection (1).

Immunity and indemnity

40.6( 1) The Minister or an agent of the Minister is not liable to any person for any loss, damage, cost or expense arising from the carrying out of, or the exercise of authority under, an order made under subsection 40.4(2) or (4).

40.6( 2) Without limiting subsection (1), no compensation is payable by the Minister or the Crown to any person in respect of any change to, or the relocation or removal of, a privately owned sign required under subsection 40.21(1) or 40.3(1) or an order made under subsection 40.4(2) or (4).

Offence not a bar to other proceedings

40.7 The fact that an act or omission constitutes an offence under this Act or the regulations does not limit or affect

(a) the authority to serve a notice under subsection 40.3(1) directing actions be taken,

(b) the authority to commence a proceeding under section 40.4 or to seek a remedy under this Act or the regulations, or

Offences and penalties

40.8( 1) Despite section 51 and subsection 56(3) of the Provincial Offences Procedure Act, when a person is convicted of an offence under subsection 40.3(4), the minimum fine shall be double the minimum fine specified in that Act for that category of offence.

40.8( 2) If an offence under subsection 40.3(4) continues for more than one day

(a) the minimum fine that may be imposed is double the minimum fine set by the Provincial Offences Procedure Act for a category C offence multiplied by the number of days during which the offence continues, and

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act for a category C offence multiplied by the number of days during which the offence continues.

TOD signs

40.9( 1) On application on a form provided by the Minister, the Minister may, if satisfied that a tourism business meets the eligibility criteria prescribed by regulation, manufacture a TOD sign on behalf of the tourism business and install the sign in a regulated area.

40.9( 2) The Minister may maintain a TOD sign if the Minister is satisfied that the tourism business complies with the requirements prescribed by regulation.

40.9( 3) The Minister may remove a TOD sign if a tourism business

(a) fails to pay an annual fee for maintenance of the sign prescribed in New Brunswick Regulation 2001-26 under the Financial Administration Act, or

(b) fails to comply with the requirements prescribed by regulation.

3 The heading “Advertisements on highway” preceding section 43 of the Act is repealed.

4 Section 43 of the Act is repealed.

5 Subsection 67(1) of the Act is amended by adding after paragraph (m) the following:

(m.1) respecting the display of privately owned signs in regulated areas, including

( i) establishing classes of privately owned signs,

( ii) establishing classes of permits referred to in section 40.11, including

( A) establishing eligibility criteria for a permit,

( B) prescribing requirements applicable to permits for the purposes of subsection 40.11(2),

( C) prescribing the period of time for which a permit is valid for the purposes of subsection 40.11(5),

( D) prescribing circumstances for the purposes of paragraph 40.11(6)(c), and

( E) exempting any class of privately owned sign from the application of section 40.11,

( iii) prescribing different requirements for different classes of privately owned signs, including the design, location, size, standards of construction, contents and purposes of privately owned signs, based on the class of highway,

( iv) authorizing the Minister to establish requirements for privately owned signs in addition to the requirements referred to in subparagraph (iii), and

( v) adopting, in whole or in part, with the modifications that the Lieutenant-Governor in Council considers necessary, any regulation, guideline, rule, code, standard or procedure;

(m.2) respecting TOD signs, including

( i) establishing classes of TOD signs,

( ii) establishing eligibility criteria for the purposes of subsection 40.9(1), including different criteria for different classes of TOD signs,

( iii) prescribing requirements to be complied with by a tourism business for the purposes of paragraph 40.9(3)(b), including different requirements for different classes of TOD signs, and

( iv) establishing the design, location, size, standards of construction, contents and purposes of TOD signs, based on the class of TOD sign and the class of highway;

(m.3) exempting a highway or a portion of highway from the application of sections 40.1 to 40.8 and prescribing the circumstances in which a highway or a portion of highway is exempted from the application of sections 40.1 to 40.8;

6 Paragraph 69(1)f) of the French version of the Act is amended by striking out “appareil de réglementation de la circulation” and substituting “dispositif de régulation de la circulation”.

7 Schedule A of the Act is amended

by striking out

	43(2) ...............			C
	43(3) ...............			B
	43(4) ...............			E

and substituting the following

40.3(4)...............

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS,
REPEAL AND COMMENCEMENT

Transitional provisions

8( 1) On the commencement of this section, any permit to display an advertisement in a regulated area issued by the Minister under New Brunswick Regulation 97-143 under the Highway Act that is in force immediately before the commencement of this section shall be deemed to be a permit to display a privately owned sign in a regulated area issued under section 40.11 of the Highway Act, as enacted by section 2 of this Amending Act, and shall continue in force until the term of the permit expires or the permit is cancelled in accordance with the Highway Act or the regulations under that Act.

8( 2) For greater certainty, any term or condition applicable to a permit referred to in subsection (1) immediately before the commencement of this section applies to the permit deemed to have been issued under section 40.11 of the Highway Act, as enacted by section 2 of this Amending Act.

8( 3) On the commencement of this section, any approval to display a short-term advertisement in a regulated area issued by the Minister under New Brunswick Regulation 97-143 under the Highway Act that is in force immediately before the commencement of this section shall be deemed to be a permit to display a privately owned sign in a regulated area issued under section 40.11 of the Highway Act, as enacted by section 2 of this Amending Act, and shall continue in force until the term of the permit expires or the permit is cancelled in accordance with the Highway Act or the regulations under that Act.

8( 4) For greater certainty, any term or condition applicable to an approval referred to in subsection (3) immediately before the commencement of this section applies to the permit deemed to have been issued under section 40.11 of the Highway Act, as enacted by section 2 of this Amending Act.

8( 5) Any advertisement displayed in a regulated area of a provincial highway immediately before the commencement of this section and for which no permit or approval has been issued by the Minister under New Brunswick Regulation 97-143 under the Highway Act shall be deemed, on the commencement of this section, to be a privately owned sign displayed in contravention of section 40.1 of the Highway Act, as enacted by section 2 of this Amending Act.

8( 6) Despite any inconsistency with a provision of the Highway Act or the regulations under that Act, any application to the Minister for a permit to display an advertisement in a regulated area that was commenced under New Brunswick Regulation 97-143 under the Highway Act as it existed immediately before the commencement of this section but not completed before the commencement of this section shall be dealt with and completed in accordance with the procedure that was in effect at the time the application was received by the Minister.

8( 7) Despite any inconsistency with a provision of the Highway Act or the regulations under that Act, any application to the Minister for an approval to display a short-term advertisement in a regulated area that was commenced under New Brunswick Regulation 97-143 under the Highway Act as it existed immediately before the commencement of this section but not completed before the commencement of this section shall be dealt with and completed in accordance with the procedure that was in effect at the time the application was received by the Minister.

Regulation under Financial Administration Act

9 New Brunswick Regulation 2001-26 under the Financial Administration Act is amended

(a) by repealing the heading “Citation” preceding section 1 of the French version and substituting the following:

Titre

(b) by repealing section 1 and substituting the following:

1 This Regulation may be cited as the Fees in Relation to Highway Commercial Signage Regulation – Financial Administration Act.

2 The following definitions apply in this Regulation.

“Minister” means the Minister of Transportation and Infrastructure and includes any person designated by the Minister to act on the Minister’s behalf. (Ministre)

“privately owned sign” means a privately owned sign as defined in the Highway Act. (panneau privé)

“TOD Fingerboard sign” means a TOD Fingerboard sign as defined in the Highway Commercial Signage Regulation – Highway Act. (panneau TD de destination)

“TOD Highway logo sign” means a TOD Highway logo sign as defined in the Highway Commercial Signage Regulation – Highway Act. (panneau TD de logos au bord des routes)

“TOD Major attraction sign” means a TOD Major attraction sign as defined in the Highway Commercial Signage Regulation – Highway Act. (panneau TD d’attraction majeure)

“TOD Ramp logo sign” means a TOD Ramp logo sign as defined in the Highway Commercial Signage Regulation – Highway Act. (panneau TD de logos le long des bretelles)

“TOD Secondary attraction sign” means a TOD Secondary attraction sign as defined in the Highway Commercial Signage Regulation – Highway Act. (panneau TD d’attraction secondaire)

“TOD tourist/visitor information sign” means a TOD tourist/visitor information sign as defined in the Highway Commercial Signage Regulation – Highway Act. (panneau TD d’information touristique)

(d) in section 3

( i) in paragraph (a) in the portion preceding subparagraph (i) by striking out “TOD Regular attraction sign” and substituting “TOD Secondary attraction sign”;

( ii) by repealing paragraph (c);

( iii) in paragraph (d) by striking out “private advertisement” and substituting “privately owned sign”.

New Brunswick Highway Corporation Act

10 Paragraph 38(1)(g) of the New Brunswick Highway Corporation Act, chapter N-5.11 of the Acts of New Brunswick, 1995, is amended

(a) by repealing the portion preceding subparagraph (i) and substituting the following:

(g) respecting any matter or thing in relation to privately owned signs or signs generally that are located in an area 150 m wide that runs parallel to a highway, measured from the near edge of the travelled portion of the highway, including respecting

(b) in subparagraph (i) by striking out “such advertisements or signs” and substituting “privately owned signs or any other signs”;

(c) in subparagraph (ii) by striking out “such advertisements or signs” and substituting “privately owned signs or any other signs”;

(d) in subparagraph (iii) by striking out “such advertisements or signs” and substituting “privately owned signs or any other signs”.

Repeal of Highway Advertisements Regulation – Highway Act

11 New Brunswick Regulation 97-143 under the Highway Act is repealed.

Commencement

12 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.