Title: Order LA02-06 - Planning Appeal - Fran J. Whitlock-McGowan v. Community of Lower Montague (Dec. 10/02)

Docket: LA02008
Order LA02-06

IN THE MATTER of an appeal by Fran J. Whitlock-McGowan against a decision of the Community of Lower Montague dated July 4, 2002.

BEFORE THE COMMISSION

on Tuesday, the 10th day of December, 2002.

Maurice Rodgerson, Vice-Chair
Norman Gallant, Commissioner
Anne Petley, Commissioner

Order

WHEREAS on July 23, 2002, the Commission received a Notice of Appeal filed by Fran J. Whitlock-McGowan (the Appellant) against a purported decision of the Community of Lower Montague (the Respondent), dated July 4, 2002, to, in effect, “not enforce” its zoning and subdivision control bylaw with regard to the construction of a fence by Charles and Linda Duffy (the Developers) on provincial parcel number 863761 in the Community of Lower Montague;

AND WHEREAS the text of the purported July 4, 2002 decision reads as follows:

Dear Ms. McGowan:

In response to your letter dated June 10/02, and your request that council (1) enforce the bylaw reguarding [sic] fences and (2) demand that your neighbour obtain a permit. As you are aware, no permit is required to build a fence under the Lower Montague Bylaws. However, we will inform your neighbour (Dr. Duffy) that the fence he has constructed is in conflict with our bylaws, due to the height restriction.

Sincerely,

Gordon MacKenzie

Chairman

AND WHEREAS the Commission's jurisdiction in appeals of this nature is set out in subsection 28.(1) of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. P-8, which reads:

28.(1) Subject to subsection (2), (3) and (4), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act may, within twenty-one days of the decision, appeal to the Commission.

AND WHEREAS the Commission invited written comments from the Appellant, Respondent and the Developer on the issue of whether or not the purported decision of July 4, 2002 cited above was, in fact, a decision of a council within the meaning of subsection 28.(1) of the Act;

AND WHEREAS the Appellant and the Developer's legal counsel did file written submissions on the issue of whether or not the purported decision of July 4, 2002 was, in fact, a decision within the meaning of section 28.(1) of the Act;

AND WHEREAS the Commission has carefully considered the submissions provided in the Appellant's letter of October 27, 2002 and the letter of November 1, 2002 from the Developer's legal counsel;

AND WHEREAS the Commission is a creature of statute and only has the authority expressly conferred upon it by the Legislature;

AND WHEREAS there is no evidence before the Commission that the Respondent approved a resolution of council dealing with the subject matter referred to in the purported decision of July 4, 2002;

AND WHEREAS Mr. MacKenzie's July 4, 2002 letter to the Appellant does not appear to be a decision of council, but rather information provided by the council's Chairman;

AND WHEREAS the Commission previously held in Order LA02-03, Shawn McGee v. Resort Municipality (see reasons given in paragraphs 18 to 21 of said decision) that there is no obligation under the Planning Act for a community to enforce its bylaw;

AND WHEREAS it appears that the Appellant's concerns regarding the Developer's fence and the alleged effect said fence has on the Appellant's property, as noted in the Notice of Appeal, and as further elaborated upon in the Appellant's letter of October 27, 2002, involve matters of a real property dispute between adjacent landowners over which the Commission lacks jurisdiction and therefore, an appeal before the Commission is not an appropriate forum to deal with the Appellant's concerns;

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

IT IS ORDERED THAT

the July 4, 2002 letter from Gordon MacKenzie to the Appellant is not a decision of a council within the meaning of subsection 28.(1) of the Planning Act; therefore the Commission does not have the jurisdiction to hear this appeal.

DATED at Charlottetown, Prince Edward Island, this 10th day of December, 2002.

BY THE COMMISSION:

Maurice Rodgerson, Vice-Chair

Norman Gallant, Commissioner

Anne Petley, 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.