Order LA02-05 - Planning Appeal - Kirk Brown and J'Nan Brown v. Minister of Provincial Affairs and Attorney General (Dec. 6/02)

Docket: LA02011
Order LA02-05

IN THE MATTER of an appeal by Kirk Brown and J'Nan Brown against a decision by the Minister of Provincial Affairs and Attorney General dated March 3, 1994.

BEFORE THE COMMISSION

on Friday, the 6th day of December, 2002.

Ginger Breedon, Chair
Weston Rose, Commissioner
Arthur Hudson, Commissioner

Order

WHEREAS on September 26, 2002, the Commission received a Notice of Appeal filed by Kirk Brown and J'Nan (Jane A.) Brown (the Appellants) against a decision of the Minister of Provincial Affairs and Attorney General (now the Minister of Community and Cultural Affairs) (the Respondent), dated March 3, 1994, to issue preliminary approval to Donald Allan (now Allan Properties Inc.) (the Developer) to establish a single family dwelling subdivision on Provincial Property Number 756122;

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. (Emphasis added)

AND WHEREAS subsection 28.(4) of the Act reads as follows:

(4)    No appeal lies from a decision of the council or the Minister respecting

(a)    the final approval of a subdivision where the grounds for the appeal are matters that could have been heard and determined at the stage of preliminary approval of the subdivision; or

(b)    the final approval of a subdivision or development permit within a resort development, where the grounds for the appeal are matters that could have been heard and determined at the stage of preliminary approval of that subdivision or development. (Eff. Jun. 19, 2001), c.47,s.1.

AND WHEREAS the Respondent's March 3, 1994 decision predated the current wording of subsection 28.(4) of the Act;

AND WHEREAS the Appellants' Notice of Appeal was received by the Commission over eight years after the Respondent's decision to issue preliminary approval for said subdivision;

AND WHEREAS following receipt of the appeal, the Commission invited written comments from the Appellants, Respondent and the Developer on the issue of whether or not the Appellant's right of appeal had expired;

AND WHEREAS the Appellants and Respondent did file written submissions on the issue of whether or not the Appellant's right to appeal had expired;

AND WHEREAS the Commission has carefully considered the submissions provided in the Appellants' letter of November 1, 2002 and the Respondent's letter of October 2, 2002;

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

AND WHEREAS the Legislature, through the Planning Act, has clearly stipulated a time limitation for the filing of an appeal as set out in subsection 28.(1);

AND WHEREAS the Commission has no authority to waive the provisions of the Act;

AND WHEREAS the date of the decision and the date of the Notice of Appeal are not in dispute;

AND WHEREAS the Commission takes notice of the fact that the Respondent has acknowledged, in writing, that the Appellant will have the opportunity to appeal said subdivision at the final approval stage;

AND WHEREAS the Appellant may file a fresh appeal, within twenty-one days, of a decision of the Minister to give final approval to the aforementioned subdivision, as the current requirements of subsection 28.(4) were not in effect at the time of the Respondent's decision to issue preliminary approval of this particular subdivision;

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

IT IS HEREBY ORDERED that the Commission is without jurisdiction to hear the present appeal, filed as Docket LA02011.

DATED at Charlottetown, Prince Edward Island, this 6th day of December, 2002.

BY THE COMMISSION:

Ginger Breedon, Chair

Weston Rose, Commissioner

Arthur Hudson, 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.