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Order

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Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

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Appearances & Witnesses

1.  For the Appellant

Gary McLure

Witnesses:
Chris Palmer
Sandy Foy

2.  For the Respondent

Alan Robison
Eugene Lloyd

3.  For the Developer

John Mantha
David Wu

4. Members of the Public

Bonnie Mitchell
Dario Zannier

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Reasons for Order

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1.  Introduction

[1]  The Appellant Gary McLure (the Appellant) filed an appeal 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]  On July 23, 2013, the Appellant filed his Notice of Appeal.  On the Notice of Appeal form, the Appellant described the decision appealed as "Permit No. C-2013-2060 Sub. Div. Plan #10252B PID1008978".  The Appellant cited the grounds for his appeal as "The approval of a change of use parcel 1008985 [Commission note: changed to 1008986 see below] see attached page 1 and 2".   

[3]  On August 29, 2013, the Commission received a copy of the file from the Respondent Minister of Finance, Energy and Municipal Affairs (the Respondent).  Also on August 29, 2013, the Commission received from the Appellant an amendment to his Notice of Appeal.  This amendment changed all references (on both the Notice of Appeal form and the added attachments) to parcel number 1008985 to 1008986 and changed all references (on the attachments – the reference on the Notice of Appeal form was correct) to parcel number 1008998 to 1008978.

[4]  On October 1, 2013, the Appellant filed further documents including highlighted excerpts from the Planning Act Subdivision and Development Regulations, five plans of subdivision and a deed relating to the fifth plan of subdivision. 

[5]  The Commission attempted to serve various letters and packages of documents on the Developers Tian Fei and David Wu (the Developers).  Some of these packages and letters were returned by Canada Post and Purolator.

[6] On October 9, 2013, the hearing of the appeal commenced.  At the hearing, two preliminary matters were raised. 

Preliminary Matter #1 

[7]  Sandy Foy, a member of the public, requested intervener status.  The Commission heard from Mr. Foy and the parties and determined that Mr. Foy could testify and present documents as a member of the public or as a witness for a party, but the Commission denied him intervener status.  Mr. Foy was ultimately called as a witness by the Appellant. 

Preliminary Matter #2 

[8]  The Respondent's representative sought clarification as to which of the Respondent's decisions were the subject of the appeal.  The decisions identified were a June 26, 2013 decision of the Respondent to grant preliminary approval to the Developer David Wu's application to append parcel number 1008986 (Lot06-2, Plan #52120A) to parcel number 1008978 (Plan #10252B) and a July 3, 2013 Development Permit C-2013-2060 issued to the Developer Tian Fei to renovate and relocate existing rental cottages and locate 9 additional rental cottages on parcel number 1008978, Sub. Plan #10252B and located at 31 Blue Spruces Way in the community of Hampton. 

[9]  The Commission determined that it would hear an appeal of the July 3, 2013 decision as the Appellant's Notice of Appeal was filed within the 21 day appeal period.  The Commission also determined that it would not hear an appeal of the June 26, 2013 decision as the Appellant's Notice of Appeal was filed beyond the 21 day appeal period set out in section 28 of the Planning Act. 

[10]  The Commission then proceeded to hear testimony from witnesses and members of the public as well as oral submissions from the representatives of the three parties. 

[11]  Following the hearing, the Commission commenced its deliberations.  An issue of concern was identified.  The Commission authorized the Commission's Appeals Administrator to inquire into the issue, invite a response and establish a deadline for any such response, with deliberation to reconvene following such deadline. 

2.  Discussion

The Appellant's Position

[12]  The Commission's issue of concern is identified and explained in detail in the following letter from the Commission's Appeals Administrator.  Personal addresses have been removed for privacy reasons.

 

[13]   The following is a screenshot prepared by the Commission's Senior Systems Specialist containing all of the Respondent's decisions for the community of Hampton taken from "PEI Planning Decisions":

 

[14]  The Commission received the following response from legal counsel for the Respondent:

3.  Findings

[15]  The Commission finds that it will re-hear this appeal pursuant to section 12 of the Island Regulatory and Appeals Commission Act which 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.

[16]  While legal counsel for the Respondent suggests that the June 26, 2013 decision was merely entered under the wrong property number, the Commission has viewed and reviewed "PEI Planning Decisions" numerous times looking for all of the Respondent's decisions pertaining to the community of Hampton, going back as far as November 2008 [some 34 entries as of early December 2013 - see the screenshot reproduced earlier] and can find no listing of any decision made by the Minister on June 26, 2013 pertaining to the community of Hampton.  It is not a matter of a mere clerical error posting a decision under the wrong parcel number: the decision was not posted at all on the website. 

[17]  The Commission's search of "PEI Planning Decisions" was made overly difficult as that website does not permit a public search by parcel number.  The public would face the very same difficulties in searching this website as the Commission.   

[18]  Section 23.1 of the Planning Act obligates municipal decision makers and the Respondent to provide notice of planning decisions to the public.  Without notice, a right of appeal is an empty right.  The Appellant filed his Notice of Appeal within 21 days of the only relevant decision which was posted on "PEI Planning Decisions".  The Commission finds that where a decision maker fails to adhere to the statutory obligation set out in section 23.1 of the Planning Act, the common law notice requirement will apply so that the 21 day appeal period will commence when an appellant learns of the decision. 

[19]  The Commission hereby rescinds its oral decision made on October 9, 2013 with respect to the appeal status of the June 26, 2013 decision of the Respondent. 

[20]  In the present appeal, the June 26, 2013 decision appears prima facie [at first sight] to be a necessary pre-condition to the July 3, 2013 decision.  Both decisions are very much germane to the issues raised in the Appellant's Notice of Appeal and attachments.  In order to provide a fair hearing to all parties, it is essential that the hearing reconvene so that the parties may call evidence and make submissions pertaining to both decisions. 

[21]  The Commission will therefore reconvene the hearing of this appeal and will instruct Commission staff to coordinate such additional hearing days as may be necessary to allow for further evidence and submissions in order to allow for a full and complete appeal hearing pertaining to both the June 26 and July 3 decisions. 

[22]  Having scrutinized "PEI Planning Decisions" in considerable depth, the Commission is also concerned that the Respondent may not be paying full attention to clauses 23.1(2)(d) and (e) which require a specified appeal expiry date and also strongly implies that the Respondent will provide more information about a decision when requested to do so. 

4.  Disposition

[23]  An Order rescinding the Commission's oral decision made on October 9, 2013 with respect to the appeal status of the June 26, 2013 decision of the Respondent and reconvening the appeal hearing follows.

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