[1]  This is a consolidation of appeals filed with the Island Regulatory and Appeals Commission (the Commission) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Planning Act) by James Gorman and Norah Gorman, identified as appeal LA03002 (the Appellants Gorman), and William S. Knowles, identified as appeal LA03003, (the Appellant Knowles).  The appeals are against a decision of the City of Charlottetown (the Respondent) on February 10, 2003 to approve an application by the APM group (the Developer) for a 45 unit infill housing project on provincial parcel number 341859 situate at 135-137 Pownal Street (the proposed development).

[2]  The Appellants Gorman filed their Notice of Appeal with the Commission on February 26, 2003.  The Appellant Knowles filed his Notice of Appeal with the Commission on February 28, 2003.  The hearings of the appeals filed by the Appellants in this matter have been consolidated for administrative purposes, with the consent of the parties.

[3]   After due public notice and suitable scheduling for the parties, the Commission proceeded to hear the consolidated appeals on June 25 and 26, 2003.

2.    Discussion

The position advanced by the Appellants Gorman

[4]   The Appellants Gorman provided detailed written grounds of appeal in their Notice of Appeal with attachments (Exhibit A1) and seek relief as enumerated in said document.   At the hearing, the Appellants Gorman emphasized the following points in their oral arguments:

• The proposed development is not an infill project.  "Infill Housing" is not defined in the Respondent's Zoning and Development By-law (the By-law).  In order to determine what the By-law considers infill housing to represent, it is necessary to review the By-law's Appendix "F" Development Guidelines for Small Lot Infill Housing (guidelines).  A review of these guidelines suggests that the proposed development is clearly incompatible with what the guidelines contemplate for appropriate infill projects.  In effect, the Respondent tried to bring the proposed project under the provisions of section 13.11 of the By-law when it clearly didn't belong there. 

 [5]   In the alternative, should the Commission determine that the proposed development does represent an infill project, the Appellants Gorman submit the following:

• For the Respondent to consider the provisions contained in the guidelines as matters they had the discretion to ignore would run counter to the spirit of the By-law and thus undermine the By-law.  Upon an examination of the Notice of Appeal (Exhibit A1), it becomes readily apparent that the vast majority of the guidelines were not met.

• Under section 9 of the Interpretation Act R.S.P.E.I. 1988, Cap. I-8, "Every enactment shall be construed as being remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."  "Enactment" is defined under section 1.(c) of the Interpretation Act as meaning an Act or a regulation, or any portion of an Act or regulation.  Section 1. (e)  defines "regulation" as including a bylaw.  To apply section 13.11 of the By-law to the proposed development as the Respondent has done would run counter to the object of the By-law to ensure orderly development of the community as provided for in the By-law as a whole.

• It is submitted that the average height of adjoining properties is significantly lower than the average height of the proposed development.  Under the guidelines, the average overall height of the proposed development should not exceed the average overall height of adjoining properties.

• It is submitted that the proposed development is incompatible with the objectives and policies contained within section 3.2, Sustaining Charlottetown's Neighbourhoods, of the Respondent's Official Plan.

[6]   It is submitted that the appeal should be allowed, and the Respondent's decision quashed, as the proposed development does not qualify as an infill project under the By-law. In the alternative, should the Commission find that the proposed development does constitute an infill project, the appeal should be allowed and the Respondent's decision should be quashed on the basis that the proposed development runs contrary to the guidelines for infill housing, the By-law as a whole, and the objectives and policies contained within the Respondent's Official Plan. 

The position advanced by the Appellant Knowles

 [7]   The Appellant Knowles provided written grounds of appeal in his Notice of Appeal and an attached letter (Exhibit A2) and seeks relief as specified in said documents.   At the hearing, the representative for the Appellant Knowles emphasized the following points in his oral arguments:

• The proposed Grafton Street exit for the proposed project is purported to be a 20 foot right of way over the Knowles property.  This purported right of way has not been used as such for over fifty years, and accordingly, it is submitted that the right to use this driveway as a right of way has been lost.

• While the Appellant Knowles recognizes that the Developer needs to make a living, it is submitted that the proposed development will have a negative impact on the adjacent Knowles property.  In particular, the use of the existing right of way situate on the Knowles property will affect the convenience and safety of the tenants who live in the Knowles property, as well as the safety of the public.

• There is no evidence before the Commission that the Respondent has considered the adequacy of access for emergency vehicles to the proposed development.

• The size and scale of the whole proposed project is not compatible with adjacent buildings.  However, the 3 story portion fronting Pownal Street would, by itself, be appropriate.

[8]   It is submitted that the appeal should be allowed and the proposed development be scaled back by eliminating the 5 story rear wing, using that area for open space, maintaining the 3 story front portion of the proposed development and eliminating the exit onto Grafton Street. 

The position advanced by the Respondent 

[9]   The Respondent emphasized the following points in its oral arguments:

• Section 13.11 of the By-law provides the Respondent with the flexibility to permit infill housing which does not meet the requirements of the R-3 (medium density residential) and R-4 (apartment residential) zones, provided the site development principles under section 4 of the By-law are considered, a notice is given to adjacent property owners as if this were a minor variance, the infill housing guidelines contained in Appendix "F" of the By-law are considered by the applicant, and a development agreement may be required. The guidelines contained in Appendix "F" of the By-law are factors to be considered by a developer, not rigorous requirements.  Therefore, the By-law allows the Respondent to exercise its discretion in approving an application for infill housing. The Respondent's decision to approve the proposed development is therefore consistent with the By-law.

• Approval of the proposed development is consistent with several general statements of policy in the Respondent's Official Plan: for example, section 3.2 Sustaining Charlottetown's Neighbourhoods, section 3.3 Housing Needs and Variety, section 4.2 A Vibrant Downtown, and section 5.6 Services & Facilities for an Aging Population.

• While the proposed project does incorporate significant height and density, and this density is very high by Charlottetown standards, greater density in the downtown area is desirable and is necessary from an economic perspective.  The Respondent's staff did alert the Respondent to concerns over height and density, and these concerns were considered by the Respondent before making its decision to approve the proposed development.

• Section 13.11 of the By-law represents an exception to the "black letter law" of the R3 and R4 zoning requirements and allows the Respondent to take a fair, large and liberal interpretation of the By-law and the Official Plan in order to balance the interests of residents and achieve the purposes of the Official Plan.  Thus, the Respondent's decision is consistent with section 9 of the Interpretation Act.

• The Respondent's decision to approve the proposed project is subject to a signed development agreement.  Further details will be required before the Respondent would issue a building permit to the Developer.

• There is no expert opinion evidence before the Commission on the subject of "sound planning principles".  Therefore, for the appeal to succeed there would need to be a demonstrated error in process or error in interpretation.  The evidence does not support a finding that such error has occurred.

[10]  The Respondent submits that it properly exercised its discretion under the By-law.  The Respondent's decision to approve the proposed development subject to a development agreement is consistent with its By-law and the general statements of policy in the Official Plan.  Therefore, the appeal should be denied. 

The position advanced by the Developer 

[11]  The Developer submits the following in its oral arguments:

• While "Infill Housing" has not been defined in the By-law, the Respondent's Development Officer stated in his testimony that any project built on a lot surrounded by existing development constitutes infill housing.  Thus, it is submitted that the infill housing provisions under section 13.11 of the By-law do apply to the proposed development.

• The proposed development is a good project for downtown Charlottetown.  There needs to be a return of residents to the downtown area in order to revitalize this area.  While the density of the proposed project is relatively high, good planning principles dictate that higher densities are appropriate in downtown areas.

• While the proposed development does not fit all the guidelines,   the guidelines are not mandatory.  The proposed development does meet the requirements of the By-law when considered as an infill housing development, and it is in keeping with the goals, objectives and policies of the Respondent's Official Plan.

[12]  The Developer submits that the Respondent's decision to approve the proposed development is lawful and the appeal should be denied.

3.    Findings

[13] The Commission has carefully considered the evidence and the submissions of the parties within the framework of the applicable law.  As indicated by the parties, this is the first time that the Commission has heard an appeal of a decision under section 13.11 of the Respondent's By-law.

[14]  Subsection 28(1) of the Planning Act 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.

[15]  As a preliminary matter, a portion of the Appellant Knowles' appeal concerns the legal status of a purported right of way on the Knowles property, adjacent to the proposed development.  From the evidence on file, it is apparent that the proposed development intends to utilize this purported right of way as an exit for the proposed development's planned underground parking complex.  The Respondent and the Developer contend that the Commission has no jurisdiction to determine the legal status of this purported right of way, as the determination of the legality of a purported right of way is a matter of real property law over which the Supreme Court of Prince Edward Island has exclusive jurisdiction.  The Appellant Knowles submitted that the Commission does have such jurisdiction, referring to a recent order of the Commission, Order LA03-01 Alan Roper v. City of Charlottetown.

[16]  In Order LA01-02 Les Zielinski v. Resort Municipality the Commission considered the issue as to whether it had the jurisdiction to determine a right of way.  In that order, the Commission stated that it "…does not have the jurisdiction to determine the existence, location or width of a right of way, or disputes between parties concerning a right of way".

[17]  With respect to Order LA03-01 Alan Roper v. City of Charlottetown, the Commission stated the following:

While the Commission does not possess the jurisdiction of the Supreme Court with respect to formal determinations of real property law, the Commission may make any determination the Respondent could have made.  As neither party argued that the Respondent, or for that matter the Commission, lacked the necessary jurisdiction to determine whether or not the unpaved portion of the Heartz Road is a public street, the Commission will consider this matter within the parameters of its role as a quasi-judicial body created by statute.

It is important to note that in Order LA03-01, the Commission found that the Respondent had made a determination as to the status of the unpaved portion of the Heartz Road. 

[18]  By contrast, in the present matter the evidence suggests that the Respondent has not made a determination on the right of way issue associated with the proposed development.  Accordingly, the Commission finds that it does not have the jurisdiction to determine the legality of the purported right of way adjacent to the proposed development.

[19]  With respect to the principle matter before the Commission in the present appeals, the Commission will consider two streams of analysis in making its decision:

1.    Whether section 13.11 of the By-law can be interpreted to apply to the proposed development with that interpretation being consistent with the Official Plan.

2.    Whether the proposed development in and of itself is consistent with the Official Plan.

[20]  Section 13.11 of the By-law reads as follows:

         13.11 INFILL HOUSING

Council May, with a recommendation from Planning Board, permit Infill Housing types that do not meet the requirements of the R-3 and R-4 Zone provided:

1.    Site Development principles, as set out in Section 4 of this By-law, are considered;

2.    A Notice to adjacent property Owners be given as if this were a minor variance;

3.    The infill housing guidelines, Appendix "F", are considered by the applicant; and

4.    A Development Agreement May be required for the Development.

As explained by the Respondent's legal counsel, words or phrases which are capitalized in the text of the By-law are defined under the By-law's definition section, section 3.  However, in spite of the fact that the term "Infill Housing" is capitalized in the opening text of section 13.11, there is no definition for this term contained within the By-law.

[21]  The Commission believes that the wording of section 13.11 allows considerable latitude for the Respondent's discretion.  The only specific requirement of the Respondent is to send a notice to the adjacent property owners.  In addition, the site development principles are to be "considered",  the infill housing guidelines are to be "considered" by the applicant and a development agreement "May" be required.  In the present matter, the Respondent has opted to require a development agreement.

[22]  Taken in isolation, section 13.11 would appear to give the Respondent wide discretion to waive the requirements of the R-3 and R-4 zones, provided a development could be lawfully characterized as infill housing.  The principle of stacked zoning would extend this waiver to residential development in other zones where R-3 and R-4 uses are specifically permitted. 

[23]  However, section 13.11 of the By-law cannot be taken in isolation.  A decision made by the Respondent under section 13.11 must be consistent with the Official Plan. Any interpretation in applying section 13.11 must be in harmony with the Official Plan.  A development must first be able to be lawfully characterized as infill housing before section 13.11 can apply.  Given that infill housing is not defined in the By-law, a review of the remainder of the By-law, the A Development Agreement May be required for the Development. and the Official Plan are necessary to determine what types of development may be lawfully characterized as infill housing. 

[24]  Subsection 15(2) of the Planning Act reads as follows:

 15(2)     The bylaws or regulations made under clause (1)(d) shall conform with the official plan and in the event of any conflict or inconsistency, the official plan prevails. 1988,c.4,s.15; 1991,c.1,s.1; 1991,c.18,s.22; 1994,c.46,s.4 {eff.} Sept. 1/94; 1995,c.29,s.6 {eff.} Oct. 14/95.

[25]  The Respondent and the Developer take the position, stated by the Respondent's Development Officer during his testimony at the hearing, that infill housing applies to the development of any project built on a lot surrounded by existing development.  The Appellants Gorman take the position that it is the intent of the By-law that infill housing be restricted to developments of a similar size and scale to existing nearby housing.

[26]  Referring to Appendix "F" Development Guidelines for Small Lot Infill Housing, the Commission notes that the guidelines provide two conceptual designs; a one and one-half storey two unit residence and a four unit row house.  The sketches of these designs are prefaced by the following statement:

The following conceptual designs are indicative of appropriate infill projects in the older downtown neighbourhoods of Charlottetown.

This conveys the impression that the Respondent's concept of infill housing was, at the time the By-law came into effect, that of a relatively small scale.  A review of the rest of the guidelines suggests a somewhat wider approach, with the common theme being that of "compatible development in existing neighbourhoods".  Particularly helpful, in the absence of a formal definition of infill housing, are the general design considerations presented in the guidelines.

         1. General Design Consideration

         The project design should reflect:

a) the pattern of existing development in the neighbourhood;
b) the density of the existing neighbourhood;
c) the scale and mass of adjoining properties;
d) the character of the streetscape, including windows, roof   shapes, materials, and exterior details.

The design should be compatible with the character of adjacent uses with respect to noise, privacy, neighbours windows, and sunlight penetration.

[27]  The guidelines contained in the Appendix referred to above are just that, guidelines contained in an Appendix to the By-law.  To attempt to define "infill housing" on the basis of these guidelines alone would be somewhat tenuous.  However, while these guidelines do not provide a precise definition of infill housing, they do provide insight into what the Respondent intended section 13.11 to be used for when the By-law was drafted.  Absent a definition of infill housing in the By-law, the Commission finds that these guidelines provide the only information within the By-law to help explain the intent of the scope of application of the infill housing provisions contained in section 13.11.

[28]  A review of the Planning Act reveals no definition of infill housing to assist the Commission.

[29]  While not defined in the Official Plan, the Official Plan does refer to infill housing, and given that the By-law must conform to the Official Plan, the Commission shall turn its focus to that document.

[30]  The Appellants Gorman referred the Commission to section 3.2, Sustaining Charlottetown's Neighbourhoods, paragraph 1. of the Official Plan, which reads as follows:

1.    Our objective is to preserve the built form and density of Charlottetown's existing neighbourhoods, and to ensure that new development is harmonious with its surroundings.

• Our policy shall be to ensure that the footprint, height, massing, and setbacks of new residential, commercial, and institutional development in existing neighbourhoods is physically related to its surroundings.

• Our policy shall be to establish an appropriate relationship between the height and density of all new development in mixed-use residential areas of existing neighbourhoods.

(emphasis added)

[31]  Section 3.2 paragraph 1, when called upon to provide guidance in this matter, is somewhat vague as the word "neighbourhood" tends to be a subjective term.  Nevertheless, the general theme is helpful: new development should be harmonious with its surroundings, and specific reference is made to footprint, height, massing, setbacks and density.  The discretionary ("should") general design considerations contained in the infilling guidelines referred to earlier are in full harmony with the imperative ("shall") policies contained within section 3.2 paragraph 1 of the Official Plan.

[32] The Respondent and the Developer referred the Commission to section 3.2 Sustaining Charlottetown's Neighbourhoods, section 3.3 Housing Needs and Variety, section 4.2 A Vibrant Downtown, and section 5.6 Services & Facilities for an Aging Population.  The crux of their arguments appears to be that the proposed development will revitalize the neighbourhood and the downtown while enhancing the diversity of housing options, e.g. providing "Class A residential housing".  Once again, most portions of these sections are somewhat vague for the purpose of the matter before the Commission, although the general theme is helpful: revitalize housing and housing variety in the downtown area. 

[33]  However, with respect to the matter before the Commission, not all of these policies are quite so general. Section 4.2 of the Official Plan contains a rather specific paragraph which reads as follows:

7.    Our objective is to increase the attractiveness of the downtown core as a great place to live.

• Our policy shall be to encourage the rehabilitation of building stock within the downtown core area.

• Our policy shall be to encourage more infill housing and upper floor residential conversion of commercial buildings through the establishment of assistance programs.

• Our policy shall be to encourage infill housing which maintains a personal scale and is inspired by the surrounding residential vernacular architecture.

• Our policy shall be to actively promote the downtown core area as an attractive residential environment.

(emphasis added)

[34]  The summary sheet prepared for the February 4, 2003 meeting of the Respondent's Planning Board (portion of Exhibit R3) provides considerable information of help to the Commission to ascertain the scale of the proposed development.   The proposed development has a footprint of 21,329 square feet while the lot is 32,670 square feet (.75 of an acre).  The proposed development would consist of a 3 story portion fronting on Pownal Street with a 5 story addition running back on the lot.  The maximum density under R-3/C-1 zoning (the current zoning in this area) for this size lot would be 22 units.  Under R-4/DMU zoning (the highest density residential zoning in the By-law), the maximum density would increase to 26 units for a .75 acre lot.  The density for the proposed development was characterized as very high at approximately 60 units per acre (45 units on a .75 acre lot).  An analysis of a number of blocks in this area, including the affected block, found a density of approximately 11 units per acre, with the highest density blocks having approximately 30 units per acre.  Concern was expressed by the Respondent's staff regarding the proposed development with respect to the density at 60 units per acre and the height of the rear 5 story wing at 60 feet.

[35]  According to the testimony of the Respondent's Development Officer, the proposed development's lot had been rezoned from DMU (Downtown Mixed-Use) to C1 (Business Office Commercial) approximately one and one half years ago.  Under the principle of stacked zoning, the DMU zone includes R-4 residential uses, while the C1 zone includes R-3 residential uses.  Therefore, it would appear that the Respondent had previously made a conscious decision to lower the maximum permissible residential density in this zoned area including the site of the proposed development.

[36]    Given the parameters summarized in paragraph 34 above, the Commission finds that the proposed development does not meet the objectives and policies set forth in sections 3.2 and 4.2 of the Official Plan.  The number of units proposed (45 units) is more than twice that permitted by the current zoning (22 units).  The density, at 60 units per acre, is twice that of the highest existing density blocks in the older part of the city.  The mass of the proposed development is very substantially beyond that of the adjoining buildings.  It is difficult to believe that the authors of the Respondent's Official Plan would have considered a project with the above noted characteristics as being harmonious and physically related to its surroundings.

[37]  While it could be argued that section 4.2, paragraph 7, bullet 3 of the Official Plan refers to a policy to "encourage" infill housing which maintains a personal scale, and therefore infill housing which was not of a personal scale would still be permissible, such a theoretical argument takes a very narrow view and would likely be contrary to section 9 of the Interpretation Act.  Applying the aforementioned theoretical argument to the present matter would also result in an interpretation of section 4.2, paragraph 7, bullet 3 which would be inconsistent with section 3.2, paragraph 1 of the Official Plan.

[38]  Also, to arrive at an interpretation that the infill housing provisions under section 13.11 of the By-law can be used as a tool to permit a development with nearly twice the density of the highest density zones within the City of Charlottetown demands a further review of the Official Plan.  The Official Plan does not speak of high density housing. Rather, as references are made to increasing degrees of residential density, it refers to "medium density", "moderately higher densities" and "higher density".  For example, section 4.2, paragraph 4 reads as follows:

4.    Our objective is to focus higher density development within specific parts of the downtown core area.

• Our policy shall be to establish a higher density development zone within the core which will serve as the Downtown Growth Area.

• Our policy shall be to permit mixed use development in the Downtown Growth Area which will include retail, office, entertainment, institutional, and residential uses.

• Our policy shall be to encourage higher density development with a greater Floor Area Ratio than elsewhere in the downtown core, but which is consistent with the policies established in this plan.

(emphasis added)

Three themes relevant to the present matter are apparent from the points cited above: higher density development is to be accomplished through zoning, higher density development in the downtown should occur within the Downtown Growth Area and, most importantly, higher density development is to be consistent with the other policies in the Official Plan.  These themes do not appear to support the Respondent's interpretation of section 13.11 of the By-law.

[39]  Therefore, with respect to the first stream of analysis referred to earlier in these reasons; given the present wording of the Official Plan and the By-law, and in the absence of a definition of infill housing in the By-law, the Commission finds that to interpret section 13.11 as applying to the proposed project would place that section in conflict with the policy expressed in section 4.2, paragraph 7, bullet 3 and the objective and policies contained in section 3.2, paragraph 1 of the Official Plan.

[40]  More generally, concerning the second stream of analysis; given the Official Plan's objectives to preserve the built form and density of Charlottetown's existing neighbourhoods, and to ensure that new development is harmonious with its surroundings, the Commission finds that the Respondent's approval of the proposed development is, in and of itself, inconsistent with the Official Plan.

[41]  Subsection 15(2) of the Planning Act is very clear and applies to both streams of analysis: in the event of any conflict or inconsistency between a by-law and its official plan, the official plan prevails. 

[42]  There is no evidence before the Commission that the Respondent amended the relevant portions of its Official Plan prior to making its February 10, 2003 decision.

[43]  There is also no evidence that the Respondent reviewed the Official Plan prior to making its decision under section 13.11.  The summary sheet prepared for the Respondent's Planning Board makes no mention of the Official Plan.  The minutes of Planning Board do not refer to the Official Plan.  The minutes of the Respondent's Council makes no mention of the Official Plan.  Section 13.11 provides a discretionary exception to be made from the zoning requirements of the By-law.  In view of the very substantial nature of the proposed development and its substantive divergence from the identified residential zones contained in the By-law, it likely would have been helpful to the Respondent in making its decision to have had available an analysis of the provisions of the Official Plan vis a vis the discretion provided through section 13.11.

4.    Decision Summary

[44]  The Commission finds that the use of section 13.11 of the By-law to permit a doubling of the maximum permitted residential density in a portion of the C-1 zone is not in conformity with the Official Plan as it is currently written.  The Commission therefore allows the appeals and the Respondent's February 10, 2003 decision to approve the proposed development is hereby quashed, as said decision is in conflict with the Official Plan in its totality and, more specifically, with the policy dealing with infill housing expressed in section 4.2, paragraph 7, bullet 3 and the objective and policies contained in section 3.2, paragraph 1.

[45]   The Commission, however, agrees with the Respondent and the Developer that higher density residential housing developments may well be an appropriate element in a vibrant downtown Charlottetown.  This view is supported by section 4.2, paragraph 4 of the Official Plan.  However, the first bullet of that section and paragraph makes it clear that this is to be accomplished through zoning:

• Our policy shall be to establish a higher density development zone within the core which will serve as the Downtown Growth Area.

This has not been done.

[46]  Given that the existing density associated with R-3/C-1 and R-4/DMU zoning appear to be inadequate to permit the higher density residential housing developments now supported by the Respondent, and given that the Official Plan calls for the establishment of a higher density development zone, the Respondent may wish to consider the establishment of such a zone to support higher density housing in the downtown area.  The Commission believes that the proposed development, or similar such projects in the future, should be considered under a new, clearly established higher density zone, rather than by attempting to interpret the infill housing provisions beyond the intent apparent for such provisions under the Official Plan.

[47]  The Commission wishes to make it clear that it is not against higher density housing in downtown Charlottetown per se providing such proposals are demonstrated to be compatible with the Respondent's Official Plan and By-law.  In addition, the Commission recognizes that the infill provisions under section 13.11 of the Respondent's By-law are designed to give the Respondent latitude and discretion.  However, in exercising this discretion, the Respondent must be in conformity with the Official Plan.  To the extent that the Respondent wishes to change its land use policies and support higher density housing, it is essential that the Official Plan be reviewed and amended as permitted under the process set forth in the Planning Act.  Among other things, this process would provide full opportunity for Charlottetown residents to review and provide input on any proposed changes.

5.  Disposition

[48]  An Order allowing these appeals will therefore be issued.

---

Order

WHEREAS James Gorman and Norah Gorman, and William S. Knowles, have appealed a decision made by the City of Charlottetown, dated February 10, 2003;

AND WHEREAS the Commission heard these appeals at public hearings conducted in Charlottetown on June 25 and 26, 2003 after suitable scheduling for the parties and due public notice;

AND WHEREAS the Commission has issued its findings in this matter in accordance with the Reasons for Order issued with this Order;

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

IT IS ORDERED THAT

1.    The appeals are allowed and the decision of the City of Charlottetown is hereby quashed.

DATED at Charlottetown, Prince Edward Island, this 8th day of August, 2003.

BY THE COMMISSION:

Ginger Breedon, Chair

Weston Rose, 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.