Order LA05-12 - Dockets LA05009 & LA05012 - Planning Appeal - John Moore/Gregg Guptill, John Moore, & Gerald Morneau (Nov. 18, 2005)

Docket: LA05009 & LA5012
Order LA05-12

IN THE MATTER of an appeal (LA05009) by John Moore of decisions of the City of Summerside, dated April 26 and May 4, 2005, and an appeal (LA05012) by Gregg Guptill, John Moore and Gerald Morneau of a decision of the City of Summerside, dated June 3, 2005.

BEFORE THE COMMISSION

on Friday, the 18th day of November, 2005.

Brian J. McKenna, Vice-Chair
Kathy Kennedy, Commissioner
Anne Petley, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1.    For the Appellants:

Written submissions filed by Barry Copeland on behalf of the Appellants.

2.   For the Respondent:

Written submissions filed by Krista J. MacKay, Counsel for the Respondent

Reasons for Order

1.  Introduction

[1] John Moore and Gregg Guptill, John Moore and Gerald Morneau (the Appellants) have filed two appeals 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).

[2] The Appellant John Moore (the Appellant Moore) filed appeal LA05009 on May 6, 2005. This appeal concerns the decision "…wherein the Development Officer made a decision not to apply a temporary Heritage Designation to properties located at 124, 132 Central Street, Summerside in order to prevent their demolition." A review of the file provided by the City of Summerside (the Respondent) noted that one building permit authorizing the demolition of an existing building was issued on April 26, 2005 (132 Central Street) and two building permits also authorizing demolition were issued on May 4, 2005 (301 Notre Dame Street and 319 Notre Dame Street).

[3] The Appellants Gregg Guptill, John Moore and Gerald Morneau (the Appellant Guptill et al) filed appeal LA05012 on June 3, 2005. This appeal concerns a decision of the Respondent to issue building permit #2005-0554 for the construction of a condominium project.

[4] Both appeals concern the proposed condominium project that was the subject matter of a rezoning appeal previously before the Commission. In Order LA04-08, the Commission denied, conditional upon the satisfaction of the requirements set forth in said Order, an appeal of the Respondent's decision to approve rezoning of several parcels for the condominium project. In Order LA05-03, the Commission confirmed that the requirements of Order LA04-08 had been satisfied and denied Appeal LA04033 filed by the Respondent Moore.

[5] Subsequent to the filing of the present appeal, the Respondent raised a jurisdictional issue with the Commission. The Commission invited written submissions from the parties in order to allow the parties an opportunity to be heard on the jurisdictional issue. Submissions were received on September 1, 2005 and rebuttal submissions were received on September 12, 2005.

[6] The present Order deals with the jurisdictional matters only.

2.  Discussion

Appellant's Submissions

[7] The Appellants filed detailed written submissions and rebuttal submissions with the Commission. The essence of these submissions is summarized below.

[8] Concerning Appeal LA05009, the decision not to conduct a heritage review of the subject properties was made by the Respondent's Development Officer. The Development Officer also made the decision to issue the building permits authorizing the demolition of buildings on these properties. A decision not to intervene was made by the Respondent's Council. The Appellants submit that these decisions may be appealed under section 28 of the Planning Act and pursuant to section 3.12a of the Heritage Conservation Bylaw.

[9] Concerning Appeal LA05012, section 19 of the Building Bylaw SS-09 is both optional and limited in scope. The wording of section 19 is optional in that the appeal option contained in section 19 is permissive but not imperative. The section 19 appeal option is limited in scope as it is limited to non-technical matters, and the Appellants' grounds for appeal concerning Appeal LA05012 contain several objections relating to technical code matters.

[10] The Appellants therefore submit that the Commission has the jurisdiction to hear both appeals on their merits.

Respondent's Submissions

[11] The Respondent filed detailed written submissions and rebuttal submissions with the Commission. The essence of these submissions follows.

[12] With respect to Appeal LA05009, the Respondent submits that the decision not to apply a temporary Heritage Designation to the buildings located at 124 and 132 Central Street was made by the Development Officer and was not "a decision of council" within the meaning of the Planning Act. The Respondent submits that only a decision of council may be appealed pursuant to section 28 of the Planning Act.

[13] In the alternative, the Respondent submits that it was obviously the decision of council that the buildings on these properties were not going to receive heritage designation or else the issue would presumably have been raised. Council made the decision to approve the re-zoning and official plan amendment for the subject properties initially on January 19, 2004 and then again on November 15, 2004 following the requirements of Order LA04-08. The Development Officer completed a Heritage Impact Study and the study and the proposed project were brought before the Heritage Planning Board. The Appellant Moore was involved in the various appeals to the Commission in 2004 concerning this project. The time for the Appellant Moore to have raised the issue of a possible heritage designation or a possible temporary heritage designation was during the approval and appeal processes and not the eve of the demolition of the buildings.

[14] The buildings which the Appellant Moore wished to have temporarily designated as heritage properties no longer exist and therefore their designation and any decision with respect thereto has essentially become moot.

[15] With respect to Appeal LA05012, the issuance of a building permit is not a decision of council as set out in the Planning Act. The Building Bylaw sets out a clear appeal process to be followed. Once an appeal to Council is heard pursuant to section 19 of the Building Bylaw, the decision of Council may then be appealed to the Commission. The Appellants had an opportunity to appeal the decision of the Building Inspector to Council. The decision of Council could then be appealed to the Commission. The Appellant Guptill on June 17, 2005 advised the Respondent's Mayor that he was appealing the decision of the Building Inspector pursuant to the appeal provisions contained in the Building Bylaw. By letter dated June 21, 2005, the Appellant Guptill was advised that his appeal to Council would be heard on June 27, 2005. However, the Appellants filed Appeal LA05012 before Council made its decision and accordingly, Appeal LA05012 is premature and the Commission does not have the jurisdiction to hear said appeal.

[16] The Respondent therefore submits that the Commission does not have the jurisdiction to hear the appeals and requests that these appeals be dismissed.

3. Findings

[17] The Commission has considered the documents on file and the submissions and rebuttal submissions of the parties. With respect to Appeal LA05009, the Commission finds that it does not have the jurisdiction to hear the appeal. With respect to Appeal LA05012, the Commission finds that it does have jurisdiction to hear the matter on its merits. The reasons for these findings follow.

Appeal LA05009

[18] According to the September 1, 2005 submission of the Respondent, demolition of the buildings on the subject properties occurred on May 6, 2005. The Appellant Moore filed his appeal the very same day.

[19] The Commission finds that the Appellant Moore was aware, or ought to have been aware, that these buildings present on the subject property were in jeopardy. He participated in appeals held before the Commission in 2004 and received a certified copy of Order LA04-08. He was aware, or ought to have been aware, that the buildings would have to be either moved or demolished to make way for a 35 unit 5 storey condominium development as the appeals of the rezoning of the subject property for the aforementioned development were denied. The Respondent followed the requirements of Order LA04-08 and the matter was properly placed before its Heritage Planning Board. Order LA05-03 confirmed that the Respondent satisfied the requirements of Order LA04-08.

[20] The Commission finds that it was incumbent upon the Appellant Moore, knowing that the buildings might very well have been in jeopardy, to request a heritage designation or a temporary heritage designation prior to the November 15, 2005 decision of Respondent's Council. There is no evidence that he made such request on a timely basis. Rather, he waited until April 2005 to make his formal request for a heritage designation. Upon learning that his request would be denied, and then learning permits authorizing demolition had been issued, the Respondent could have filed an application for a remedy through the Supreme Court to prevent the demolition from happening, pending an appeal. However, he did not.

[21] The Commission does not have the power to impose penalties arising out of appeals under the Planning Act. Upon the demolition of the buildings, the Commission was not in a position to grant a remedy. The Commission can neither turn back the hands of time, nor can it impose a fine upon the Respondent. The Appellant Moore did not obtain a remedy to prevent the demolition and the Commission does not have the power to grant a remedy. Therefore, the Commission finds that it is effectively without jurisdiction to hear Appeal LA05009. The Commission wishes to point out that this conclusion is specific to this fact situation alone.

Appeal LA05012

[22] 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.

Section 19 of the Respondent's Building Bylaw SS-09 reads as follows:

Disputes [amended April 19, 2004]

Any person who is aggrieved by an order or decision issued by the building inspector pursuant to this bylaw, other than one relating to technical code requirements, may appeal within 15 days of the date of issuance to city council who shall hear the reasons of all parties in the dispute and issue a final and binding decision, subject to rights of appeal to the Island Regulatory and Appeals Commission (IRAC) in accordance with the Provincial Planning Act. [emphasis added]

[23] The Commission notes that the appeal section of the Respondent's other planning related bylaws are quite different. For example, the Respondent's Zoning Bylaw SS-15 (a copy of which was provided to the Commission in March 2004 as part of the zoning appeal concerning the same proposed development) contains the following appeal provision:

Right of Appeal

4.19 a) Any person who is dissatisfied by a decision of Council or the Development Officer made under this bylaw may appeal to the Island Regulatory and Appeals Commission within 21 days of said decision, in accordance with the Planning Act.

b) The City is not liable for damage suffered by any person resulting from development undertaken during an appeal period, or while a decision is under appeal.

[24] The Commission finds that the variety of appeal provisions contained in the Respondent's various planning related bylaws may cause confusion. In interpreting section 19 of Building Bylaw SS-09, the Commission is mindful of section 9 of the Interpretation Act, which reads as follows:

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. 1981,c.18,s.9.

The Commission notes that, under paragraph 1.(c) of the Interpretation Act, enactment includes a regulation and under paragraph 1.(e) regulation includes a bylaw enacted "in the execution of a power conferred by or under the authority of an Act".

[25] The Commission finds that the following factors have a key impact in its interpretation of section 19 of Building Bylaw SS-09:

While section 28 of the Planning Act gives a broad right of appeal, section 19 of Building Bylaw SS-09 appears to restrict the scope of appeal by excluding decisions or orders relating to technical code requirements;

The ambiguity of the wording contained in section 19 "subject to rights of appeal to the Island Regulatory and Appeals Commission (IRAC) in accordance with the Provincial Planning Act."; and

The variety of appeal provisions in the various planning related bylaws of the Respondent creates confusion as to the appropriate route of appeal.

[26] Given the above factors, the Commission finds that a fair, large and liberal construction of the section 19 appeal provision would suggest that said section provides an internal appeal process to the Respondent's Council in addition to a more direct right of appeal to the Commission.

[27] With respect to the Respondent's argument that the subsection 28(1) appeal process under the Planning Act should be read literally and only a decision of council should be able to be appealed, the Commission rejects such an argument. The decisions of officials delegated by municipal councils and, for that matter, the Minister of Community and Cultural Affairs have been appealed to the Commission on many past occasions following the principle of delegated authority. If the Commission accepts the Respondent's argument on this point, a municipal council or the Minister could avoid the statutory appeal process merely by delegating decisions to staff officials. Fortunately, the nature of delegated authority and section 9 of the Interpretation Act serve to maintain the appeal rights of the public by tempering an overly literal reading of an enactment. In this sense, the legal rights of the public to appeal are protected against the imposition of "black letter law".

[28] Accordingly, the Commission finds that it does have the jurisdiction to hear the Appeal LA05012.

4. Disposition

[29]   An Order that the Commission does not have the jurisdiction to hear Appeal LA05009 and does have jurisdiction to hear LA05012 will therefore be issued.

Order

WHEREAS John Moore has appealed (LA05009) decisions of the City of Summerside dated April 26 and May 4, 2005;

AND WHEREAS Gregg Guptill, John Moore and Gerald Morneau have appealed (LA05012) a decision of the City of Summerside dated June 3, 2005;

AND WHEREAS the Commission has received written submissions and rebuttal submissions from the parties on the issue of whether the Commission has the jurisdiction to hear these appeals;

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 is without jurisdiction to hear Appeal LA05009.

2. The Commission does have jurisdiction to hear Appeal LA05012.

DATED at Charlottetown, Prince Edward Island, this 18th day of November, 2005.

BY THE COMMISSION:

Brian J. McKenna, Vice-Chair

Kathy Kennedy, Commissioner

Anne Petley, 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.