Title: Order LA02-02 - Request for Review - Lorna MacKay v. Department of Community Affairs & Attorney General (March 8/02)

Docket: LA97017
Order LA02-02

IN THE MATTER of a Request for Review of Commission Order LA97-13 by Lorna MacKay and William MacKay.

BEFORE THE COMMISSION

on Friday, the 8th day of March, 2002.

Ginger Breedon, Chair
Norman Gallant, Commissioner
Kathy Kennedy, Commissioner

Order

WHEREAS the Commission issued Order LA97-13 on November 19, 1997 dismissing the appeal filed by Lorna MacKay against a decision by the then Department of Community Affairs and Attorney General to issue building permit SS-139-97 for the erection of a pole barn for storage of hay;

AND WHEREAS the Applicants Lorna MacKay and William MacKay filed a submission with the Commission, dated December 12, 2001 requesting that the Commission review Order LA97-13;

AND WHEREAS this request was made pursuant to section 12 of the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988, Cap. I-11;

AND WHEREAS section 12 states:

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.

AND WHEREAS a copy of the Applicant's submission was sent to the Minister of Community and Cultural Affairs (formerly known as the Minister of Community Affairs and Attorney General), who was the Respondent in the original appeal, to Donald Corbett, who was the Developer in the original appeal, and to the Department of Fisheries, Aquaculture and Environment, for their consideration;

AND WHEREAS Ryan Corbett, acting as an agent of the Developer, filed a response with the Commission on February 15, 2002. No response was received from the Minister of Community and Cultural Affairs, but a response was received from the Department of Fisheries, Aquaculture and Environment;

AND WHEREAS the Commission has 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 section 12 of the Island Regulatory and Appeals Commission Act. This test has been interpreted consistently by the Commission in its past decisions;

AND WHEREAS as noted in previous decisions of the Commission, the onus rests upon the Applicant to show that a prima facie case exists or that evidence exists which is sufficient to entitle the Applicant to a 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;

AND WHEREAS 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 presented. Changed circumstances will dictate a review only if they are material;

AND WHEREAS the Commission has considered the Request for Review filed by the Applicants on December 12, 2001 after having provided the other parties to this matter with an opportunity to respond;

AND WHEREAS the Commission finds that the issues raised in the Applicants' Request for Review establish a prima facie case, constitute a material change in the circumstances and represent a situation which has developed since the Commission's decision in Order LA97-13;

AND WHEREAS the Commission's decision in Order LA97-13 was premised on the fact that building permit SS-139-97 was issued to the Developer specifically to erect a hay storage pole barn on provincial parcel number 534867;

AND WHEREAS the evidence before the Commission considered in Order LA97-13 revealed no evidence at that time that the subject barn was actually being used for any use or purpose other than the use specifically provided for in building permit SS-139-97;

AND WHEREAS the Applicants' submission of December 12, 2001 advised the Commission that the Respondent is permitting livestock to be housed in the barn that was the subject of building permit SS-139-97;

AND WHEREAS Ryan Corbett, acting as the Developer's agent, advised Commission staff of the following in his February 15, 2002 submission:

I am writing you today in response to your letter to inform you that as of November 2001, I have been housing livestock in my barn located at South Granville.

AND WHEREAS there is no evidence before the Commission that the Department of Fisheries, Aquaculture and Environment approved, agreed to or otherwise allowed the housing of livestock in the barn that was the subject of building permit SS-139-97;

AND WHEREAS there is no evidence before the Commission that the Minister of Community and Cultural Affairs received any application from the Developer or anyone acting as his agent to vary the specific terms of building permit SS-139-97, obtain a new building permit or obtain any change of use permit;

Order

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

IT IS ORDERED THAT

1. The Commission allows the Applicants' Request for Review.

2. The Commission will hereby rescind Order LA97-13 and will hereby quash building permit SS-139-97 unless the Respondent or his agent returns the subject barn exclusively to its permitted use as a hay storage barn within twenty-one (21) days of the date of this present Order.

DATED at Charlottetown, Prince Edward Island, this 8th day of March, 2002.

BY THE COMMISSION:

Ginger Breedon, Chair

Norman Gallant, Commissioner

Kathy Kennedy, 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.