Dockets: LA04014
Order LA04-02

IN THE MATTER of an appeal by John Martin (Captain John's Market Inc.) against a decision of the Community of Borden-Carleton, dated April 13, 2004.

BEFORE THE COMMISSION

on Wednesday, the 30th day of June, 2004.

Maurice Rodgerson, Chair
Brian J. McKenna, Vice-Chair

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Order

WHEREAS the Appellant John Martin (Captain John's Market Inc.) on May 5, 2004 filed with the Commission an appeal of an April 13, 2004 decision of the Respondent Community of Borden-Carleton;

AND WHEREAS the Respondent, in its April 13, 2004 decision, denied a request by the Appellant to rezone property number 380733 from Neighbourhood Commercial (C1) to Highway Commercial (C2) and the Respondent also denied a request by the Appellant for an amendment to the Development Agreement between Captain John's Market Inc. and the Community of Borden-Carleton;

AND WHEREAS the staff of the Commission advised the parties by registered letter that the appeal appeared to have been filed beyond the twenty-one day appeal period set out in subsection 28(1) of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 (the Planning Act), said subsection which 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. (emphasis added)

AND WHEREAS on June 14, 2004 the parties received a registered letter providing them with an opportunity to file written submissions concerning the appeal on or before June 28, 2004;

AND WHEREAS the Respondent filed a brief submission on the appeal period issue and no submissions were received from the Appellant;

AND WHEREAS the Commission reviewed all documentation on file and the requirements of section 28 of the Planning Act;

AND WHEREAS the Commission finds that the Appellant's appeal was filed twenty-two days after the Respondent's decision and the Commission does not have the power to extend the appeal period set forth in subsection 28(1) of the Planning Act;

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 matter.

DATED at Charlottetown, Prince Edward Island, this 30th day of June, 2004.

BY THE COMMISSION:

Maurice Rodgerson, Chair

Brian J. McKenna, Vice-Chair

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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.