---

Order

---

Contents

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

---

Written submissions filed by:

1.  For the Appellant Margaret MacKay

Margaret MacKay

2.  For the Respondent Community of LInkletter

David Linkletter, Chair, Community of Linkletter

---

Reasons for Order

---

1.  Introduction

[1]  On June 17, 2014, the Appellant Margaret MacKay (the Appellant) 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).

[2]  The Appellant appealed a June 3, 2014 purported decision of the Respondent Community of Linkletter (the Respondent) to allow the construction of an eight to nine foot high fence on parcel number 439216 in the Community of Linkletter.

2.  Discussion

The Appellant's Position

[3]  The Appellant takes the position in her Notice of Appeal that the fence is over six feet high and is therefore a "structure" under the Respondent's 2006 Zoning and Subdivision Control Bylaw (the Bylaw).  As a structure, a building permit is required prior to the commencement of construction.  The Appellant contends that no building permit was issued and submits that the fence is in violation of the Bylaw. 

[4] The Appellant seeks as a remedy the removal of the fence situate on parcel 439216.  The Appellant also seeks various listed costs. 

The Respondent's Position 

[5]  Following the filing of the appeal, the Respondent's Chair contacted Commission staff via email on July 1, 2014 to advise that the developers of parcel 439216 made no formal application for a permit.  The developers had sent a letter to the Respondent requesting permission and the Respondent had concluded that no permit was required.  The Respondent's Chair stated in part:

We do realize now that a formal application was required for a fence over six feet in height, what do you suggest we do to correct this situation? 

[6]  In a follow up email dated July 11, 2014, the Respondent's Chair provided a copy of the minutes of the June 3, 2014 Council meeting.  The Respondent's Chair stated in part: 

'...the council thinking we had no Bylaws for fences gave permission to build the fence pending Provincial Bylaws which we discovered did not have any.  I may also add this was the first time anyone in the Community ever asked permission to build a fence even though lots of fences were built.

3.  Findings

[7]  The Commission finds that it does not have the jurisdiction to hear this appeal for the reasons that follow. 

[8]  The Respondent's Bylaw defines a "structure" as "...any construction fixed to, supported by or sunk into land or water, but excludes concrete or asphalt paving or similar surfacing, and a fence six (6) feet or less in height".  The Commission interprets this definition as rendering a fence of over six feet in height a "structure" for the purposes of the Respondent's Bylaw.   Section 7.1 of the Bylaw applies to any building or structure and requires that a person apply for and have received "...a building permit from the Administrator prior to commencing any construction, erection, demolition, movement, change of use or site excavation". 

[9]  Section 28 of the Planning Act sets out a list of the kinds of decisions that may be appealed to the Commission and the process for doing so.  Subsection 28(1.1) is noteworthy for the purposes of this decision on jurisdiction: 

Appeals from decisions of council 

(1.1)  Subject to subsections (1.2) to (1.4), any person who is dissatisfied by a decision of the council of a municipality 

(a) that is made in respect of an application by the person, or any other person, 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; or 

(b) to adopt an amendment to a bylaw, including 

(i) an amendment to a zoning map established in a bylaw, or

(ii) an amendment to the text of a bylaw,

may appeal the decision to the Commission by filing with the Commission a notice of appeal. 

[10]  In the present appeal, there was no application for a building permit.  The Respondent's Council mistakenly believed that their Bylaw did not address fences.  The Respondent thus failed to make a decision pursuant to the Bylaw.  There is no decision to appeal and therefore the Commission has no jurisdiction over the matter at this time. 

[11]  The Respondent has sought direction from the Commission in order to "correct this situation".  The Commission encourages the Respondent to obtain planning and legal advice as to the appropriate path to resolve the matter.   

[12]  With respect to the remedies requested by the Appellant in her Notice of Appeal, the Commission wishes to point out that neither the Planning Act nor the Island Regulatory and Appeals Commission Act gives the Commission the authority to award costs.

4.  Disposition

[13]  An Order stating that the Commission has no jurisdiction to hear this appeal follows.

---