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Dockets LA12013
Order LA13-02

IN THE MATTER of an appeal filed by Brian Chandler of a decision of the Community of Miltonvale Park.

BEFORE THE COMMISSION

on Friday, the 11th day of January, 2013.

Maurice Rodgerson, Chair
John Broderick, Commissioner

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Order

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On October 11, 2012, the Appellant Brian Chandler (Mr. Chandler) filed a Notice of Appeal form 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). 

Mr. Chandler's Notice of Appeal form made reference to a March 14, 2012 letter from Sandy Foy (Mr. Foy), Development Officer of the Respondent Community of Miltonvale Park and a September 14, 2012 letter from Scott M. Barry (Mr. Barry), solicitor for the Respondent.   

On October 15, 2012, Commission staff sent a letter to the parties identifying a jurisdictional matter.  The letter invited the parties to make written submissions with respect to the jurisdictional issue. 

On November 7, 2012 Mr. Foy filed a written submission via email.  Mr. Foy submits on behalf of the Respondent that the decision was made on March 6, 2012 and communicated to Mr. Chandler by way of a letter dated March 14, 2012.  Mr. Foy submits that the Respondent's decision was a bylaw enforcement decision and that such decisions are not included in the list of appealable decisions contained in section 28 of the Planning Act.  Mr. Foy also submits that Mr. Chandler's appeal was filed well beyond the 21 day appeal period set out in section 28 of the Planning Act.   

On November 6, 2012, Mr. Chandler filed written submissions.  Mr. Chandler's submissions deal with the merits of his appeal rather than the jurisdictional issues. 

There are two jurisdictional issues before the Commission. The first issue deals with the timing of the appeal.  The second issue deals with a determination as to whether the Respondent's decision was a type of decision which could be appealed. 

Mr. Chandler's Notice of Appeal was filed on October 11, 2012, several months after the Respondent wrote a decision letter to Mr. Chandler.  This is well beyond the 21 day appeal period set out in the Planning Act.  While it might be said that Mr. Chandler's Notice of Appeal was filed in response to Mr. Barry's September 14, 2012 letter, Mr. Barry's letter was not a decision letter; rather it was a follow-up letter written by the Respondent's solicitor.  Further, more than 21 days had passed between the date of Mr. Barry's letter and the filing of Mr. Chandler's appeal.  On the basis of the filing date of the Notice of Appeal form alone the Commission does not have the jurisdiction to hear this appeal. 

The second issue is the matter of whether the Respondent's decision was the kind of decision which could be appealed to the Commission.  The pith and substance of Mr. Foy's March 14, 2012 decision letter is that no person shall commence any development without first applying for, and receiving, a permit from the Respondent's Council.  Mr. Foy's letter stated that the trailer was located in contravention of the Respondent's Bylaw and he requested the removal of the trailer within 60 days. 

The Commission finds that Mr. Foy's March 14, 2012 decision letter concerns the matter of bylaw enforcement.  Subsection 28(1.1) of the Planning Act provides a list of municipal decisions which may be appealed to the Commission.  These decisions must relate to an application under a bylaw for: 

(i)  a building, development or occupancy permit;

(ii)   a preliminary approval of a subdivision;

(iii)   a final approval of a subdivision;

(iv)   an amendment to a zoning map established in a bylaw; or

(v)  an amendment to the text of a bylaw. 

In Order LA09-11, 629857 N.B. Inc. et al v. City of Charlottetown, the Commission noted that the right of appeal was contained in the Planning Act and limited to specified matters within said legislation.  No right of appeal was present in the Charlottetown Area Municipalities Act (CAMA) and decisions made pursuant to CAMA alone could not be appealed to the Commission. 

The Municipalities Act, like CAMA, does not have any provisions for an appeal to the Commission.  In the absence of an express right of appeal, there is always the potential that an appellant might argue in favour of the existence of an implied right of appeal.  However, if the legislature was of the view that a broad menu of municipal decisions could be appealed to the Commission it would be logical to place the appellate provisions within the Municipalities Act.  This, however, has not occurred in Prince Edward Island. 

There is no express right of appeal of a bylaw enforcement decision within the Planning Act.   The statutory right of appeal is provided for under the Planning Act, not the Municipalities Act, and therefore the Commission finds that the rights of appeal are limited to those set out in section 28 of the Planning Act. 

Accordingly, for the above reasons, the Commission finds that it does not have jurisdiction and pursuant to Rule 29 of the Commission's Rules of Practice and Procedure for Hearings, the Commission will not hear Mr. Chandler's appeal filed on October 11, 2012.