Title: Order LA07-03 - Docket LA07003 - Planning Appeal - David Kent and Brenda Boutilier v. Resort Municipality (May 23, 2007)

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Docket: LA07003
Order LA07-03

IN THE MATTER of an appeal by David Kent and Brenda Boutilier of a decision of the Resort Municipality, dated March 23, 2007.

BEFORE THE COMMISSION

on Wednesday, the 23rd day of May, 2007.

Maurice Rodgerson, Chair
Weston Rose, Commissioner

Order

WHEREAS the Appellants David Kent and Brenda Boutilier filed an appeal of a March 23, 2007 decision of the Respondent Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico to: 1. rezone parcel number 233429 from RR (Rural) Zone to C1 (General Commercial) Zone, 2. issue a building permit to the Developer Maxine Delaney to construct an addition to the existing building on said parcel and 3. change the use of said building into a residence with a licensed 32 seat restaurant/cafe;

AND WHEREAS the Appellants' Notice of Appeal, although dated April 11, 2007, was not received by the Commission until April 18, 2007;

AND WHEREAS subsection 28(1) of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, reads as follows:

28. (1) Subject to subsections (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 Appellants' Notice of Appeal was not received by the Commission until the 26th day after the Respondent's decision;

AND WHEREAS the Respondent had provided written notice of its decision to the Appellants, said notice dated March 23, 2007;

AND WHEREAS on the evening of April 12, 2007 the Appellants emailed Commission staff to advise that a Notice of Appeal concerning parcel number 233429 had been mailed;

AND WHEREAS subsection 28(5) of the Planning Act reads as follows:

28. (5) A notice of appeal to the Commission under subsection (1) shall be in writing and shall state the grounds for the appeal and the relief sought.

AND WHEREAS a preliminary matter was identified, namely the purported late filing of the Notice of Appeal and Commission staff invited the parties to file written submissions on this preliminary matter;

AND WHEREAS written submissions on the preliminary matter were received from the Appellants, the Respondent and the Developer;

AND WHEREAS the Commission has thoroughly reviewed the appeal file including the written submissions and hereby makes the following findings:

The Appellants' Notice of Appeal was filed with the Commission after the appeal period, set out in subsection 28(1) of the Planning Act, had expired;

The Appellants' email of April 12, 2007, notifying the Commission that a Notice of Appeal had been mailed, was filed within the statutory appeal period;

The Appellants' email of April 12, 2007 did not contain the grounds for appeal and the relief sought;

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

IT IS ORDERED THAT

The Commission is without jurisdiction to hear the Appellants' appeal. The Notice of Appeal was filed beyond the appeal period set out in the Planning Act. The email advising that the Notice of Appeal had been mailed could not be considered a notice of appeal under the Planning Act as it did not contain the grounds for appeal and the relief sought.

DATED at Charlottetown, Prince Edward Island, this 23rd day of May, 2007.

BY THE COMMISSION:

Maurice Rodgerson, Chair
Weston Rose, 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.