[1]  This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) on July 29, 2003 under section 28 of the Planning Act R.S.P.E.I. 1988, Cap P-8, (the Planning Act) by Allan Booth and Robert Peake (the Appellants) against a decision of the Community of Miltonvale Park (the Respondent) to issue a Development Permit dated June 17, 2003 to Dirk Wolters (the Developer) to permit the placement of a 56' by 14' Kent Home on Provincial Parcel Number 585422 (the subject property).

[2]  On July 23, 2003, the Commission received a letter from the Appellants.  Upon receipt of the Notice of Appeal, dated July 29, 2003, Commission staff identified a potential preliminary matter concerning the issue of jurisdiction.  Submissions were received from the Appellants on July 29, August 4 (2 submissions received that day), August 5, August 7, September 8 and September 9, 2003.  Submissions and a copy of the Development Permit file were received from the Respondent on August 12, 2003.  No submissions were received from the Developer.

[3]  This decision relates to the preliminary issue of the Commission's jurisdiction to hear this appeal.

2.    Discussion

Appellants' Position

[4]  The Appellant's position, contained in numerous letters filed with the Commission, is briefly summarized below.

• On June 17, 2003, the Respondent's Administrator issued a permit to the Developer.  This permit allowed for the placement of a mobile home on one of the 27 lots which make up the O'Connor Subdivision.   This subdivision was originally approved for single family dwelling use by the Department of Community Services on October 2, 1973.

• In late June 2003, the Developer placed a mobile home on the subject property.

• On July 7, 2003, two residents of the O'Connor Subdivision contacted the Respondent's Administrator and were advised that there is nothing in the Respondent's Zoning and Subdivision By-law (the By-law) to state that mobile homes could not be placed on single dwelling building lots in Miltonvale Park.  The residents believed that the By-law had been met and they would need to have the By-law amended to prevent mobile homes from being placed within their subdivision.

• Following a review of the By-law on the internet, the residents believed that their subdivision was zoned Rural Resource (RR) because the By-law clearly states that a mobile home could be placed in that zone.  As the Residential (R1) zone did not include mobile homes as a permitted use, it was assumed that their subdivision was not zoned R1. 

• The internet version of the By-law listed a zoning map to be under Schedule A, but the zoning map was not available online.  A copy of the zoning map was sought from Island Information on July 21, 2003 and the Respondent on July 22, 2003.  A copy of the zoning map was received from Island Information on July 23, 2003 and the residents learned that their subdivision was in fact zoned R1.

• The Appellants submit that, had they been provided with timely and accurate information, they would have filed their appeal with the Commission within the 21 day appeal period.  

The Appellants request that the Commission extend the 21 day appeal period as the respondent's Administrator provided misleading information.

Respondent's Position

[5]  The Respondent submits that the appeal was filed beyond the 21 day time limit for filing an appeal.

3.  Findings

[6]  The Commission has carefully considered both the written documentation submitted to it, and the applicable legislation.

[7]  As a tribunal, the Commission is a creature of statute with the powers and jurisdiction prescribed by statute.  In this case, the Commission's powers are derived from the Planning Act and the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988, Cap. I-11 (the IRAC Act). 

[8]  The Commission's jurisdiction in appeals under the Planning Act is set out in subsection 28(1), which states:

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. (emphasis added)

[9] The Commission also notes the mandatory nature of section 9 of the Interpretation Act:

9.  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.

[10]  Paragraph 6(a) of the IRAC Act is helpful when considering the Commission's jurisdiction:

6. The Commission has

(a) all the jurisdiction and powers conferred or vested in it by this Act or any other enactment, and all other implied or incidental powers necessary to perform its functions; (emphasis added)

[11]  The Commission notes that it does not have the jurisdiction to extend the twenty-one day appeal period.  The reasoning for this was considered in some detail in Order LA00-06 Chester Campbell v. Town of Stratford (Campbell v. Stratford).  However, in Campbell v. Stratford, the Respondent made the Appellant fully aware of the decision it had made.  The error consisted of incorrect information regarding the time period for filing a Notice of Appeal.  While the Commission found that the Appellant in Campbell v. Stratford had been unintentionally mislead by the Respondent, the Respondent had clearly informed the Appellant of the actual decision.  Thus, the Commission held that it did not have the jurisdiction to hear that appeal.

[12]  A distinction may be drawn between extending the twenty-one day appeal period, for which the Commission has no jurisdiction, versus establishing when the said appeal period begins.

[13]  In Order LA02-01 Barry Copeland v. City of Summerside (Copeland v. Summerside), Mr. Copeland had written the City requesting written clarification of the City's decision prior to the expiry of the appeal period.  He received a copy of the minutes, the content of which led him to believe his understanding was correct.  He was satisfied with what he believed was the City's decision, and therefore did not file an appeal.  The City, well aware of his interpretation of the matter and interest in filing an appeal, moved to clarify the matter the following month without informing him that this clarification now made his interpretation incorrect.  Many months later, Mr. Copeland learned of the real nature of the City's decision and then filed an appeal.  The Commission found that a reasonable person, reviewing the same information as provided to Mr. Copeland, would have come to the same conclusion he had as to the nature of the City's decision.  The Commission determined that Mr. Copeland was mislead as to the actual decision made, and held that the 21 day appeal period set forth in subsection 28(1) of the Planning Act did not commence until Mr. Copeland became aware of the actual decision made. 

[14]  In the present appeal, it is necessary to review the facts in order for the Commission to determine if there are extraordinary circumstances which would affect the commencement of the twenty-one day appeal period.  In the August 4, 2003 letter from Allan Booth, one of the Appellants, it was stated:

• We were not notified by Judy MacDonald, Administrator of our community, nor any of the council members, that an application had been received, or a permit granted, for a mobile home to be moved into our subdivision.  Seven days passed from the time the permit was granted to the time the mobile home was moved here.  This left 14 days for appeal.

• When contacted by two residents of the subdivision, well within the 21-day appeal period, Ms. MacDonald informed them that a mobile home could be placed anywhere in Miltonvale Park.  After consulting the By-law, these two residents then believed our subdivision was zoned Rural Resource, a zone which does allow for mobile home use.  They believed that their only recourse was to try to have the subdivision re-zoned.

• We were not made aware of the process for appeal until advised so by lawyer David MacLeod on July 22^nd who urged us to ask for an extension of the appeal period as soon as possible.

The Commission notes that the Respondent issued the permit to the Developer on June 17, 2003.  The Developer placed his home on the subject property on June 24, 2003, according to the Appellant's letter of August 6, 2003.  By July 7, 2003, two residents of the O'Connor subdivision had contacted the Respondent's Administrator.  Even if the residents were not aware that a decision had been made by the Respondent when the mini home first appeared on the subject property in late June 2003, the very presence of the mini home in late June 2003 ought to have attracted their attention, prompting discussion and inquiries.  By July 7, 2003 when the two residents contacted the Respondent's administrator, it was known that a permit had been issued by the Respondent.  On July 7, 2003 the time limit for filing an appeal had still not expired. 

[15]  The Commission finds that a delay in the commencement of the 21 day appeal period set forth in subsection 28(1) of the Planning Act  will only apply in the most exceptional of circumstances.  In Copeland v. Summerside, these circumstances were met as the appellant in that appeal was mislead as to the nature of the decision.  He would have, in all likelihood, appealed the City's decision within the 21 day appeal period had he known of the City's true decision.  In the present appeal, the Respondent did nothing to correct the Appellant's assumption that the subject property was within the RR zone.  However, there is no evidence before the Commission that the Respondent misrepresented the date of the decision (June 17, 2003) or the nature of the decision (development permit to place a mini home on the subject property).  While the Respondent's administrator informed them of what amounted to her interpretation of the By-law, the residents, and the Appellants, were aware of the decision that had been made, had serious concerns about that decision, and were free to seek independent advice from a lawyer or a planner.  Neither the By-law nor the Planning Act requires the Respondent to notify nearby residents when a development permit is issued. 

[16]  The present appeal is more in keeping with the situation considered by the Commission in Campbell v. Stratford than with the situation considered in Copeland v. Summerside.  As the Respondent did not mislead the Appellants as to the date the decision was made and the nature of that decision, the Commission finds that the 21 day appeal period did in fact commence on June 17, 2003, the date of the Respondent's decision and continued up to, and including, July 8, 2003.  The Planning Act does not give the Commission the discretion to extend the 21 day appeal period.   Therefore, the Commission finds that it does not have the jurisdiction to hear this appeal.

[17]  The present case is not the first time that an appeal has been filed beyond the 21 day appeal period set forth in the Planning Act due to misinformation or a lack of information from a community, town or city.  In order to foster healthy relationships and a spirit of cooperation between residents and the communities, towns and cities in which they live, the Commission wishes to make the suggestion that councils and their support staff provide residents with timely and accurate information upon request, provide full access to the applicable official plan, by-laws and zoning map, and refer residents to the appeal provisions contained within the Planning Act. 

4.  Disposition

[18]   An Order finding that the Commission is without jurisdiction to hear this appeal will be issued.

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Order

WHEREAS Allan Booth and Robert Peake have appealed a decision by the Community of Miltonvale Park, dated June 17, 2003, to issue a Development Permit to Dirk Wolters permitting the placement of a 56' by 14' Kent Home on Provincial Parcel Number 585422;

AND WHEREAS the Commission has received and considered written submissions on a preliminary matter;

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 Commission does not have the jurisdiction to hear this appeal.

DATED at Charlottetown, Prince Edward Island, this 13th day of November, 2003.

BY THE COMMISSION:

Maurice Rodgerson, Vice-Chair

Weston Rose, Commissioner

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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.