Docket: LA05005
Order LA05-06

IN THE MATTER of an appeal by James G. Rumson of a decision of the Minister of Community of Cultural Affairs dated September 20, 2004.

BEFORE THE COMMISSION

on Friday, the 13th day of May, 2005.

Brian J. McKenna, Vice-Chair
Weston Rose, Commissioner
Norman Gallant, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1.    For the Appellant:

James G. Rumson

2.   For the Respondent:

Counsel:
Robert MacNevin

3.    For the Developer:

Counsel:
Douglas R. Drysdale, Q.C.

Witness:
Robert Steeves

Reasons for Order

1.  Introduction

[1]   This is an appeal filed on February 16, 2005 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 G. Rumson (the Appellant) concerning a decision of the Minister of Community and Cultural Affairs (the Respondent) on September 20, 2004 to approve an application by Robert Steeves, Mary Steeves and Patrick Steeves (the Developers) for a 15 lot residential subdivision on parcel number 922419 located at Wheatley River.

[2]  After due public notice, the Commission proceeded to hear the present appeal on April 13, 2005.

[3]  This Order deals solely with the preliminary issue of whether the Commission has the jurisdiction to hear the appeal.

2.  Discussion

Appellant's Position

[4]   The Appellant acknowledges that the appeal was filed more than twenty-one days from the date of the Respondent's decision.  The Appellant explained that he had learned that the property was for sale and had contacted a real estate agent in August 2003.  At the time, he was informed that an offer had been received from a party from Nova Scotia who wished to construct two houses.  Given this modest scale of development, the Appellant was not concerned and did not give the matter further thought. 

[5]   The Appellant testified that he first heard rumors that the subdivision might involve more than two parcels in December 2004.  On February 2, 2005 the Respondent spoke with the Commission's staff.  The Respondent stated that he did not become aware of the Respondent's decision until he spoke with the Respondent's staff on February 7, 2005.  Prior to that date, there is no evidence that the Respondent advised the public of the September 20, 2004 decision.  The Appellant submits that he filed the appeal within twenty-one days of learning of the Respondent's decision.

[6]   The Appellant requests that the Commission find that it has the jurisdiction to hear his appeal.

Respondent's Position

[7]   The Respondent submitted that there is no requirement in the Planning Act to give the public notice of the Minister's decisions.  Given that no notice was provided, the twenty-one day appeal period would begin to run with actual notice.  However, an interested party has a duty to make inquiries.  In this case, there were ample signs of development activity on the parcel.  The Appellant therefore received notice that the property was being developed and there was a duty on the Appellant to make inquiries concerning the nature of the development.  In this case, by the time the Appellant made these inquiries the time for filing an appeal had elapsed. 

[8]   The Respondent requests that the Commission find that it does not have the jurisdiction to hear this appeal as the statutory time limit for filing an appeal had expired.

Developers' Position

[9]   The Developers submit that the Appellant had ample notice during 2004 that the property was going to be developed.  The field was mowed regularly from May to the end of September 2004.  In the spring of that year the soil was rolled.  In early to mid July of that year the Developer planted trees.  Surveying and staking of the property occurred in mid August.  In late July or early August 9 or 10 20 foot by 20 foot holes were dug with a backhoe for soil perculation test purposes.  A driveway, complete with culvert, was installed in early October.

[10]   The Developers submit that there is no legal requirement for a developer to notify neighbours as to the nature of the development.  However one neighbour had introduced herself and Mr. Steeves explained to that person what he was doing. The Developers further submit that the public was notified as the approved plan had been filed in the Registry of Deeds on September 20, 2004.  In addition, the Appellant could have made inquiries when he first heard rumors in December 2004.

[11]   The Developers request that the Commission find that it does not have the jurisdiction to hear this appeal.

 3.  Findings

[12]   After a careful review of the evidence, the submissions of the parties, and the applicable law, the Commission finds that it does have the jurisdiction to hear this appeal.  The reasons for the Commission's decision follow. 

[13]   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.

[14]   In Booth and Peak v. Island Regulatory and Appeals Commission 2004 PESCAD 18 (October 4, 2004) Justice Weber reviewed caselaw with respect to the issue of when an appeal period begins to run.  She then stated the following commencing at paragraph 20:

[20]  All these cases express a concern about ensuring that a right of appeal is a real rather than an illusory right.

[21]  I find that Re Hache and Minister of Municipal Affairs (1969), 2 D.L.R. (3d) 186 (NBSCAD) applies in this province and the appeal period will begin to run when an appellant has received notice of the decision. This may be specific notice or general notice through posting or publication or by some other means. The bylaws of a community could establish the type of public notice that will be given upon the issuance of a building permit, e.g. publication in a newspaper or newsletter, posting in the community office. If the public can become aware of the decision by way of this public process then the process will likely satisfy the requirements of notice.

[22]  Where, as in this case there is no process of public notice set out in either the Planning Act or the bylaws of the community, then time can only begin to run when an appellant has actual notice of the decision. Just seeing the mobile home on the property would not be notice of the issuance of a building permit for that home. It might have been placed on the property without a permit.

[23]  Such notice of a decision is essential to give meaning to the appeal process. If this were not the case, the right to appeal would be illusory, rendering the statutory right of appeal meaningless. It would not be reasonable to interpret the statute in a way that renders a given right meaningless. The law does not specify the manner in which notice to the public must be given but does state that there must be some public notice of a decision–or specific notice to persons affected by the development -- before an appeal period can be said to run. That being said, an appellant could not abuse this right by deliberately delaying inquiry after he/she had been put on notice that a decision appears to have been made. In the present case, the mobile home was placed on the property and the appellants became aware of that fact on June 24, 2003. There was then some responsibility on them to inquire about whether or not a permit had been issued.

[15]   The Commission finds in the present appeal that while the activities occurring on the property in the spring, summer and early autumn of 2004 ought to have been sufficient to provide a reasonable person with notice that the property was about to be developed, these activities by themselves did not inform the public or interested persons of the size or scale of the development.  The Commission accepts the testimony of the Appellant that he was informed by a real estate agent that an offer had been received from a party who intended to construct two homes.  However, the Appellant was not informed that the parcel would also be subdivided into fifteen building lots.  The mowing of a field, digging of test pits, planting of trees and installation of a culvert do not of themselves indicate that a multi-lot subdivision has just been approved.  They are all equally consistent with an approval of a two lot subdivision which the Appellant had believed would happen and of which he was not concerned about.

[16]   The Appellant testified that he first heard a rumor in December 2004 that a multi-lot subdivision was planned.  The Commission is of the opinion that a rumor alone is not an appropriate substitute for notice as contemplated by the Supreme Court in Booth and Peak referred to above.  If rumors were an appropriate basis for notice in the absence of a public notice or specific notice to nearby neighbours, much mischief could occur, potentially leading to numerous unsubstantiated inquiries to the Minister's staff or an abuse of the appeal process by filing appeals with the Commission on the basis of rumor when in fact no decision had been made. 

[17]   With respect to the Developers' submission that notice was achieved by registering the approved plan at the Registry of Deeds Office, the Commission finds that such an action by itself is insufficient to provide neighbours and the general public with adequate notice.  While registry of the approved plan does place the details of the project on file in a place which is potentially accessible to the public, the public must first have a more visible and open means of learning the most basic facts of the decision.  Having learned of the essence of the decision, the public can then obtain the details from the Minister's staff or perform a search for approved plans at the Registry. 

[18]   In the present appeal, the Appellant contacted Commission staff in early February 2005.  The Appellant then promptly contacted the Minister's staff who then responded to his inquiring on February 7, 2005 and provided him with accurate information concerning the Minister's decision.  Nine days later, the Appellant filed his appeal.  The Commission finds that the Appellant first received notice on February 7, 2005 that a multi-lot subdivision was approved and therefore the Commission further finds that the appeal was filed well within twenty-one days of receiving such notice.  On this basis, the Commission finds that it does have the jurisdiction to hear this appeal on its merits.

[19]   While it is correct to say that the Planning Act and its regulations do not require the Respondent to notify the public or neighbours, the Supreme Court's decision in Booth and Peak has addressed the issue of when an appeal period begins to run and the Commission expects that the Minister, as well as municipal decision makers, will now take full heed of the Supreme Court's decision when making decisions for matters within the scope of the Planning Act.   Providing clear and adequate notice to neighbours and the general public is in the best interest of all parties in order to avoid appeals commencing weeks, months or years after a development has received approval.

4.  Disposition

[20]  An Order stating that the Commission does have the jurisdiction to hear this appeal will therefore issue.

Order

WHEREAS James G. Rumson appealed a decision of the Minister of Community and Cultural Affairs dated September 20, 2004;

AND WHEREAS/UPON the Commission heard the appeal at public hearings conducted in Charlottetown on April 13, 2005 after 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 Commission has the jurisdiction to hear this appeal.

DATED at Charlottetown, Prince Edward Island, this 13th day of May, 2005.

BY THE COMMISSION:

Brian J. McKenna, Vice-Chair

Weston Rose, Commissioner

Norman Gallant, 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.