Order LA97-11 - LA97003 - Planning - Request by Keir & Marion Clark for a Review of Order LA97-08 (Aug 27, 1997)

Docket LA97003
Order LA97-11

IN THE MATTER of a Request for Review of Commission Order LA97-08 by Keir Clark and Marion Clark.

BEFORE THE COMMISSION
on Wednesday, the 27th day of August, 1997.

Linda Webber, Chair
Emmett Kelly, Commissioner
Anne McPhee, Commissioner

Order

Contents

1. Introduction

2. Discussion

3. Disposition

Appearances & Witnesses
Written submissions were filed by:

1. For the Appellant

Counsel:
Kenneth A. Clark

2. For the Town of Montague

Counsel:
Alfred K. Fraser, Q.C.

3. For Atlantic Resorts Ltd.

Vicki Lim-Yap

Reasons for Order

1. Introduction

On February 11, 1997 Keir Clark and Marion Clark (the Appellants) filed a notice of appeal with the Commission against a decision by the Montague Town Council (the Council) to grant a building permit to Atlantic Resorts Limited (ARL), dated January 27, 1997.

The Commission commenced the appeal hearing in Charlottetown on April 15 and reconvened on April 16, 17, 18 and 25, 1997. The Commission issued Order LA97-08 on June 13, 1997.

By letter dated July 3, 1997, Kenneth A. Clark on behalf of the Appellants requested the Commission review its decision concerning this matter. This request is made pursuant to the provisions of Section 12 of the Island Regulatory and Appeals Commission Act, which states:

Section 12

The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it, or rehear any application before deciding it.

A copy of Mr. Clark's request was sent to Alfred K. Fraser, Q.C. and Lee Yap for comment. Mr. Fraser's comments were received on July 11, 1997. Ms. Vicki Lim-Yap responded on behalf of ARL on July 15, 1997.

2. Discussion

In Mr. Clark's letter dated July 3, 1997, Mr. Clark requests that the Commission review its decision, dated June 13, 1997, on the basis that the Commission erred:

A. by relying "on the type of development applied for by ARL in its application for a development permit and the type of development for which the permit was issued", when

i. the evidence established that the development contained at least one "dwelling unit";

ii. Part 11, subsections 4.b, 4.c, and/or 4.f were not shown by the developer to have been complied with, or in the alternative, were in fact not complied with;

iii. the evidence of councillor Mr. Monroe was that the Town of Montague could not enforce use after the permit was issued; and/or,

iv. the evidence from Mr. Yap on behalf of the Developer was that he could do whatever he wanted to with his land; or, in the alternative,

B. by ignoring the paramountcy of Part 11, subsections 4.b, 4.c, and 4.f, with its introductory wording that "Notwithstanding anything else in this By-law"' or, in the further alternative,

C. For such other reasons counsel for the Appellants may seek to adduce, and the Commission may hear, at the review hearing.

Mr. Clark further states that the Appellants are seeking, in the way of relief, a determination by the Commission that the development contains at least one dwelling unit and therefore Part 11 subsections 4.b., 4.c. and 4.f. must be complied with before (pursuant to Part 5, section 3) a development permit may be issued, and the developer has not shown that Part 11 subsections 4.b., 4.c. and 4.f. were complied with, or in the alternative, Part 11 subsections 4.b., 4.c. and 4.f. were in fact not complied with.

In response to the Appellants' request for review Mr. Fraser submits that the Commission had all the information before it, made a finding on that information, and its decision should stand. Mr. Fraser states that this is not a proper case for review.

By letter dated July 10, 1997, Vicki Lim-Yap submits that ARL accepts the decision and further that it does not agree with Mr. Clark's submission that the Commission has erred.

The Commission and its predecessor, the Prince Edward Island Public Utilities Commission, have considered in the past the minimum criteria an Applicant must meet before the Commission will exercise its absolute discretion in the matter of reviewing its decisions under s. 12 of the Island Regulatory & Appeals Commission Act, and the identical predecessor to s. 12, s. 16 of the Public Utilities Commission Act. This test has been interpreted consistently by the Commission in its past decisions.

As noted in previous decisions, the onus rests upon the Applicant to show that a prima facie case exists which will entitle the Applicant to the review. A prima facie case will be shown only where the function of review should be exercised to correct an error of the Commission or to meet changed circumstances.

Changed circumstances may encompass either a situation which has developed after the decision or where new evidence emerges which was not known or not available at the time the original evidence was adduced. Changed circumstances will dictate a review only if they are material.

Finally, the power to review is discretionary and will be exercised sparingly.

This test was first laid out by the Public Utilities Commission in Case No. E209-06 and Order No. E90-8, May 2, 1990, In the Matter of the Public Utilities Commission Act and the Electric Power and Telephone Act. The Commission also relies upon another previous decision, In the Matter of a Request for Reconsideration of Commission Order LA95-16 by Fida Enterprises Limited, May 29, 1996, which followed the earlier comments of the Public Utilities Commission.

Finally, the Commission relies on the decision, In the Matter of an Application by the Town of Summerside for a Review of Order UE93-1, dated February 18, 1994, which once again followed the decision of the Public Utilities Commission, noted above. The Town of Summerside decision also found that the review power should be used sparingly and that as the Commission gives serious consideration to all of its decisions, it will not review any decision without a reasoned case being made.

Mr. Clark in his letter dated July 3, 1997, has presented the Commission with further argument based on his interpretation of the evidence already presented at the hearing on certain points upon which the Commission has already made its decision. It is the Commission's decision that the Appellant has not presented any new evidence or information for it to consider other than that which has already been submitted or could have been submitted at the original Appeal Hearing.

Finally, Mr. Clark has not suggested that there has been any significant change of circumstances which would further justify the Commission in choosing to review its decision.

In conclusion, the Commission finds that the Appellants have not made a prima facie case entitling them to a review under s. 12 of the Island Regulatory and Appeals Commission Act.

3. Disposition

The Commission has considered the submissions filed by the parties in this matter and determines that it will not review Order LA97-08.

IN THE MATTER of a Request for Review of Commission Order LA97-08 by Keir Clark and Marion Clark.

Order

WHEREAS by written notice dated July 3, the Appellants have requested the Commission review Order LA97-08;

AND WHEREAS both the Town of Montague and Atlantic Resorts Ltd. responded to this request.;

AND WHEREAS a request for review may be carried out pursuant to Section 12 of the Island Regulatory and Appeals Commission Act;

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act

IT IS ORDERED THAT

1. The request for review is hereby denied.

DATED at Charlottetown, Prince Edward Island, this 27th day of August, 1997.

BY THE COMMISSION:

Linda Webber, Chair

Emmett Kelly, Commissioner

Anne McPhee, Commissioner

NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:

12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13.(1) and 13(2) of the Act provide as follows:

13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.