Order LA17-01 - Docket LA14004 - Planning Appeal - Phillip O'Halloran v Community of Miltonval Park (March 16, 2017)

The order sought to be implemented

[25] Section 28(1.1)(a)(i) of the Planning Act (PEI) provides for an appeal to the Commission from a decision of the council of a municipality made in respect to an application by any person for a building, development or occupancy permit. The order sought to be implemented arose out of such an appeal.

[26] Sections 28(8) and (9) of the Planning Act (PEI) read as follows:

(8) The Commission shall hear and decide appeals and shall issue an order giving effect to its disposition.

(9) The Commission shall give reasons for its decision.

[27] As can be seen, the statutorily prescribed mechanism for the Commission to give effect to its disposition is by the issuance of an Order. The Commission is required to give reasons for its decision, or its disposition, but it is the Order issued under Section 28(8) which constitutes the ultimate remedy available to a dissatisfied person who appeals to the Commission.

[28] This decision relates to a request by the Appellants to implement Order No. LA15-01 pursuant to section 28(11) of the Planning Act (PEI) which reads as follows:

(11) Where the council or the Minister, as the case may be, fails to implement an order made under subsection (8), the Commission, on its own initiative or the initiative of an interested person, may act in the name of the council of the Minister to implement the order.

[29] The Commission believes that there is a clear legislative intention that the Order to be implemented under section 28(11) is the Order issued under section 28(8).

[30] In this case, the Order issued by the Commission reads as follows:

WHEREAS Philip O'Halloran has appealed two decisions of the Community of Miltonvale Park;

AND WHEREAS the Commission heard the appeals at public hearings conducted in Charlottetown on January 19 and 20, 2015 after due public notice and suitable scheduling for the parties;

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

The appeals are allowed and the Respondent's June 26, 2014 and October 23, 2014 decisions are herby quashed.

The Respondent is ordered to issue a development permit for the placement of fill to the Appellants, effective for the 2015 year.

DATED at Charlottetown, Prince Edward Island, this 16th day of June, 2015.

BY THE COMMISSION ...

[31] As can be seen, the Order of the Commission was that the Respondent "... issue a development permit ...". The evidence is clear that the Respondent has not issued a development permit to the Appellants. The question for the Commission is whether it should, in the circumstances of this case, exercise its authority under s. 28(11).

[32] In deciding this question the Commission is mindful of the objects (or objectives) of the Planning Act (PEI) which are as follows:

2. The objects of this Act are

to provide for efficient planning at the provincial and municipal level;

to encourage the orderly and efficient development of public services;

to protect the unique environment of the province;

to provide effective means for resolving conflicts respecting land use;

to provide the opportunity for public participation in the planning process. [emphasis added]

What were the Appellants initially seeking from the Respondent?

[33] The Appellants applied to the Respondent for a development permit pursuant to section 4.1.1 of the Community Zoning and Subdivision Control (Development) Bylaw 2013 (the 2013 Bylaw) which reads, in part:

SECTION #4 - GENERAL PROVISIONS FOR ALL ZONES

1.1 DEVELOPMENT APPROVAL

         1. No person shall: ...

                     (j) place, or dump any fill or other material...

         without first applying for, and receiving a permit from Council.

[34] Under section 4.5 of the 2013 Bylaw, the Community could require an applicant to submit a site plan showing such things as shape and dimensions of the lot to be used, the location, height and dimensions of any building or structure proposed to be erected or already erected on the lot, the location and dimensions of parking spaces, loading space, driveways and landscaped areas, the proposed use for the lot and its buildings or structures and any other information which the development officer deems necessary to determine if the proposed development complies with the Bylaw. In this instance no site plan was requested.

[35] When issuing a development permit, the Respondent could impose conditions and could require a development agreement in accordance with sections 4.6 and 4.7 of the 2013 Bylaw which read as follows:

4.6 CONDITIONS ON PERMITS

Council or its agent shall have the authority to impose conditions on a permit subject to such conditions being directly related to or consistent with bylaws of the Community or the Official Plan.

4.7 DEVELOPMENT AGREEMENT

Council may require any applicant to enter into a Development Agreement. This Agreement shall be a contract binding on both parties, containing all conditions which were attached to the development permit. Failure to comply with a Development Agreement shall constitute an offense under this Bylaw.

A Development Agreement may address but shall not be limited to the following matters:

site design;

the design and construction cost of sidewalks, pathways and other pedestrian access matters;

landscaping and screening;

vehicular accesses and exits;

signage;

lighting;

architectural harmony;

methods of waste disposal;

fencing; and

any other matters that Council deems necessary to ensure the health, safety, and convenience of Community residents and the travelling public.

[36] It was with those provisions in mind that in its reasons for order LA15-05 the Commission stated the following:

[63] Accordingly, the Commission allows both appeals, quashes the Respondents June 26, 2014 and October 23, 2014 decisions pertaining to this matter and orders the Respondent to issue the Appellants a development permit for the placement of fill, effective for the 2015 year. In so doing, the Respondent may attach reasonable and relevant conditions to such permit or may require a development agreement setting out reasonable and relevant terms. [underlining added]

[37] As such, "... reasonable and relevant terms ..." should be "... directly related to or consistent with Bylaws of the Community or the Official Plan."

[38] As stated in section 4.7 of the 2013 Bylaw, a development agreement should contain all conditions which were attached to the development permit issued under section 4.6.

[39] In this case, the Respondent did not issue a development permit with conditions, but proceeded to propose a development agreement first. It is the view of the Commission that this approach was a reversal of the sequence of events as contemplated by sections 4.6 and 4.7. It is the view of the Commission that the Respondent ought first to have issued the permit subject to conditions relevant or consistent with Bylaws of the Community or its Official Plan. The Respondent could also have required that the Appellants enter into a development agreement as a condition of the development permit, with such development agreement containing the conditions attached to the development permit.

[40] Proceeding with a requirement for a development agreement without first issuing and imposing conditions on the development permit placed the Appellants in an untenable position. While the Appellants might have had a right to appeal to this Commission if they disagreed with the conditions placed on a development permit, it is doubtful that the Appellants could appeal the inability of the parties to enter into a development agreement. The position taken by the Respondent effectively renders the Order of the Commission of no practical force or effect and, by extension, would negate the ability of the Appellants to take advantage of section 28(11). Such an interpretation of the Planning Act (PEI) and the 2013 Bylaw would be inconsistent with the objects of the Planning Act (PEI), in particular the objectives of efficiency in planning and development and effectiveness for resolving conflicts respecting land use.

Can the Commission implement the Order given the repeal and enactment of the Zoning and Subdivision Control Bylaw?

[41] The Commission agrees with both counsel that this issue involves a consideration of the principle against interference with vested rights. In this case, both parties have referred the Commission to the Supreme Court of Canada in Dikranian v. Quebec (Procureur general) [2005] SCR 530. In that case, the principal is described as follows:

4.2.2. Statement of Principle

32 The principle against interference with vested rights has long been accepted in Canadian law. It is one of the many intentions attributed to Parliament and the provincial legislatures. As E.A. Driedger states in Construction of Statutes (2nd ed. 1983), at p. 183, these presumptions

...were designed as protection against interference by the state with the liberty or property of the subject. Hence, it was "presumed", in the absence of a clear indication in the statute to the contrary, that Parliament did not intend prejudicially to affect the liberty or property of the subject.

This has already been accepted by Duff J. in Upper Canada College v. Smith (1920), 61 S.C.R. 413 (S.C.C.), at p. 471:

... speaking generally it would not only be widely inconvenient but "a flagrant violation of natural justice" to deprive people of rights acquired by transactions perfectly valid and regular according to the law of the time. (see also Steele-Smith v. Acme (Village) School District (1932), [1933] S.C.R. 47 (S.C.C.), at p. 51; R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at pp. 569-70.)

33 The leading case on this presumption is Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629 (S.C.C.), at p. 638, where this Court stated the principle in the following terms:

A legislative enactment is not to be read as prejudicially affecting rights, or "an existing status" (Main v. Stark [(1890), 15 App. Cas. 384, at 388]), unless the language in which it is expressed requires such a construction. The rule is described by Coke as a "law of Parliament" (2 Inst. 292), meaning, no doubt, that it is a rule based on the practice of Parliament; the underlying assumption being that, when Parliament intends prejudicially to affect such rights or such a status, it declares its intention expressly, unless, at all events, that intention is plainly manifested by unavoidable inference.

34 The principle has since been codified in interpretation statutes. The Interpretation Act is no exception:

12. The repeal of an act or of regulations made under its authority shall not affect rights acquired ... and the acquired rights may be exercised ... notwithstanding such repeal.

[42] It is worth noting here that the Interpretation Act (PEI) contains a provision somewhat similar to Quebec. The Interpretation Act (PEI) is a guide for courts and others when looking to interpret or apply legislation in Prince Edward Island and it applies to a Bylaw as well as statutes. Section 32 of the Interpretation Act (PEI) reads as follows:

32. Where an enactment is repealed in whole or in part, whether or not another enactment is substituted for it, the repeal does not

(a) revive an enactment or thing not in force or existing immediately before the time when the real takes effect;

(b) affect the previous operation of the enactment so repealed or anything done or suffered thereunder;

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed;

(d) subject to clause 33(1)(d), affect any offence committed against or a contravention of the provisions of the enactment so repealed, or any penalty, forfeiture or punishment incurred in respect of or under the enactment so repealed; or

(e) subject to clause 33(10)(b), affect any investigation, proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment,

and subject to subsection 33(1), an investigation, proceeding or remedy as described in clause (e) may be instituted, continued or enforced and the penalty, forfeiture or punishment imposed as if the enactment had not been repealed. [underlining added]

[43] As can be seen, the Interpretation Act (PEI) refers to a "... right, privilege ... acquired, accrued, accruing or incurred under the enactment so repealed.".

[44] While not disagreeing with the description of the principle of vested rights, the Respondent argues that that Appellants do not have a "vested right" to a development permit as the issuance of the development permit is conditional upon the community imposing conditions upon the development or requiring the Appellants to sign a development agreement. The Respondent in its submission quotes the following from Dikranian v. Quebec (Procureur general):

[45] The Respondent also relies on the decision of the Supreme Court of Canada in R. v. Puskas [1998] 1 S.C.R. 1207 which, interestingly, discusses section 43 of the Interpretation Act (Canada) which is almost identical to section 32 of the Interpretation Act (PEI) quoted above.

[46] The Puskas case dealt with the question of when a right of appeal to the Supreme Court of Canada was "... acquired, accrued, [or] accruing ...". At the time when the accused were charged, the Criminal Code of Canada provided for an appeal "as of right" to the Supreme Court of Canada. Subsequently, but before the Ontario Court of Appeal had ruled on their appeals to it, the Criminal Code of Canada was changed to require that leave of the Court was required for an appeal to the Supreme Court of Canada. The accused did not obtain leave, and argued that their right of appeals "... acquired, accrued [or] accruing . . " at the time they were charged. The Supreme Court of Canada disagreed, and ruled instead that the right of appeal was not "... acquired, accrued [or] accruing ..." until the Ontario Court of Appeal had ruled on their appeals. This case illustrates that, as was stated in the Dikranian v. Quebec (Procureur general) case, that whether a right is "vested" or "... acquired, accrued [or] accruing ..." will vary depending on the juridical situation in question.

[47] The Order sought to be implemented required the Respondent to issue a development permit. Section 4.7 of the 2013 Bylaw allowed the Respondent to impose conditions directly related to or consistent with bylaws of the Community or the Official Plan or, as stated by the Commission in its Reasons for Order, reasonable and relevant terms. That Order did not require a development agreement, although that was permissible both by the 2013 Bylaw of the Community and by the Reasons of the Commission. However, the Order itself clearly gave the Appellants a right to a development permit which was not provided.

[48] Taking into account the jurisprudence discussed above and in consideration of the particular circumstances of this case, it is the view of the Commission that the Appellants have a vested right to a development permit subject to such conditions as the Respondent decides to impose, subject to such conditions being directly related to or consistent with Bylaws of the Community or its Official Plan.

[49] Accordingly, the Commission is prepared to implement its Order LA15-05 by requiring the Respondent to issue a development permit to the Appellants subject to the imposition of conditions by the Respondent which are directly related to or consistent with the Bylaws of the Community or its Official Plan. The Respondent may require that such conditions, or terms, be included in a development agreement signed by the parties containing the conditions which were attached to the development permit.

Can the Commission issue an Order now given that the initial Order referred to the 2015 year?

[50] Commission Order LA15-05 referred to the 2015 year as that was the year in which it was issued, and the effect of that Order would extend into 2016.

[51] It is the view of the Commission that the request by the Appellants under consideration is, in effect, a continuation of the appeal process which began in 2014. The calendar year is not, in the Commission's view, material to the nature of the permit sought. What is material is that the Appellants be entitled to place fill on property which they own.

[52] Again, to accept the position taken by the Respondent would effectively neuter the appeal rights of the Appellants as provided under the Planning Act (PEI).

[53] In this regard, the Commission also refers again to section 32 of the Interpretation Act (PEI) as follows:

32. Where an enactment is repealed in whole or in part, whether or not another enactment is substituted for it, the repeal does not

(a) revive an enactment or thing not in force or existing immediately before the time when the real takes effect;

(b) affect the previous operation of the enactment so repealed or anything done or suffered thereunder;

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed;

(d) subject to clause 33(1)(d), affect any offence committed against or a contravention of the provisions of the enactment so repealed, or any penalty, forfeiture or punishment incurred in respect of or under the enactment so repealed; or

(e) subject to clause 33(10)(b), affect any investigation, proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment,

and subject to subsection 33(1), an investigation, proceeding or remedy as described in clause (e) may be instituted, continued or enforced and the penalty, forfeiture or punishment imposed as if the enactment had not been repealed. [underlining added]

Reasonable and Relevant Conditions

[54] The Commission received submissions from the parties as to what would be "reasonable and relevant conditions" to impose on a development permit. Counsel for the Respondent submits that the Commission cannot dictate the contents of a development agreement, pointing out that the planning is within the sole purview of the Community. The Appellant cites a number of authorities for this preposition, including Charlottetown (City) v. IRAC, 2013 PECA 10 and Resort Municipality v. IRAC, 2014 PECA.

[55] While the Commission does not disagree with those authorities, it is nevertheless of the view that what is involved here is not planning as such, but rather the exercise of the Commission's appellate authority to supervise decisions of a council of a municipality pursuant to the Planning Act (PEI). That appellate authority includes the power to implement an order made by it where a council of a municipality has failed to do so.

[56] In considering the nature and extent of its authority under section 28(11) of the Planning Act (PEI), the Commission are reminded of its general powers and authorities prescribed by the provisions of the Island Regulatory and Appeals Commission Act (PEI), and in particular section 6(1)(a) thereof which reads:

6.(1) The Commission has

(a) all the jurisdiction and powers conferred or vested in it by this Act or any other enactment, and all other implied or incidental powers necessary to perform its functions;

[57] As well, the Commission are reminded of the provisions of sections 9 and 24(2) of the Interpretation Act (PEI) which reads:

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.

24.(1) ...

(2) Where in an enactment power is given to a person to do or enforce the doing of any act or thing, all such powers shall be deemed to be also given as are necessary to enable the person to do or enforce the doing of the act or thing.

[58] Taking the foregoing statutory provisions together with the objects of the Planning Act (PEI) together, the Commission is of the view that it does have the "... implied and incidental power ..." to enforce its Order by determining what are reasonable and relevant terms to impose on the development permit sought by the Appellant. Not doing so would do little to resolve the impasse which, as can be seen, is over precisely what those terms should be.

[59] The Commission have considered the submissions of counsel for the parties and find that the five conditions imposed by the Respondent in respect to the applicant previously referred to in paragraph 14 are reasonable and relevant, those being as follows:

The Applicant agreeing that only clean earthen fill shall be placed on the Property, such fill to conform to the standards of the Department of Environment, Labour and Justice;

The Applicant agreeing to control dust and dirt resulting from the placement of the fill that may affect neighbouring properties, including leveling the fill to the final grade and seeding it with see [sic] mix or mulch mix, as appropriate;

The Applicant agreeing that no trucks shall enter upon or leave the Property other than between the hours of 7:00 A.M. and 8:00 P.M.;

The permit having an expiration date of one year from the date of issue, with the Development Officer having the power to renew the permit for an additional one year term; and

Other conditions that may be required by either the Department of Environment, Labour & Justice or Department of Transportation & Infrastructure Renewal.

[60] These appear to the Commission to be "... directly related to or consistent with the Bylaws of the Community or the Official Plan", and appear intended in part "... to ensure the health, safety and convenience of Community residents and the travelling public" as provided in Bylaw 4.7(x).

[61] As well, the Commission finds that the following additional terms acceptable to the Appellant would be reasonable and relevant, those being as follows:

Fill to be placed on the property as delineated Part B on map below:

No waste demolition materials will be placed
Seed out when work is complete in a specific area, taking into account time of year and potential for future traffic over the seeded area
If the site becomes too dusty to safely operate Applicant will water the drive area and manage any dust issues that arise, to be done at their reasonable discretion
Any site visit by community staff or agent shall be pre arranged with Appellant by appointment only during regulator operating hours

[62] While recognizing that the Respondent has made some concessions regarding various matters, including costs, the Commission advises that in its view some articles of the proposed Development Agreement are not reasonable nor relevant.

[63] The first is Article #2 dealing with costs. This provision is far too broad and could extend to costs of further proceedings before this Commission or proceedings in Court to enforce the agreement, seemingly without regard to the ultimate outcome. There are no costs awarded to any party appearing before this Commission, and appeals from our decisions to the Court of Appeal do not attract costs except for special reasons. This article is inconsistent with those considerations, and is inconsistent with what the Commission views as an overriding policy expressed by statute that costs sanctions should rarely be imposed in planning matters, including appeals.

[64] The second is Article #5 which establishes the Respondent as the sole arbiter of whether the Development Agreement has been complied with. The Development Bylaw sections 19.2 and 19.3 contain enforcement mechanisms which are available to the Respondent if it considers that there has been any violation of the Development Bylaw, including a Development Agreement. Those enforcement mechanisms require that the determination of any alleged violations should be in the hands of a third party, i.e. a court, and that is as it should be.

[65] The third is Article #6 respecting a security deposit which appears to be tied to Article #2 respecting costs.