Order LA17-07 - Docket LA16003 - Planning Appeal - Kevin Moerike, Bob Doherty and Joanne Doherty v. Minister of Communities, Land and Environment (November 15, 2017)

(28) With respect to the merits of the appeal, the Minister submitted that the application to subdivide the Property meets the requirements of the Planning Act and the Planning Act Subdivision and Development Regulations and that any surface water issues could be addressed at the development permit stage. Accordingly, the Minister requests that the Commission deny the appeal.

(29) The Developers relied on the written submissions filed by their legal counsel on September 21, 2017 (Exhibit D1). It was submitted that Mr. Tierney is a licensed soil assessor, that his license is in good standing, and that there is no evidence of any past problems concerning his site assessments. The Developers submit that the Commission does not have jurisdiction to hear the appeal for the following reasons:

(30) The Developers submit that the primary issue before the Commission is that the appeal was filed outside the 21-day appeal period. Therefore, the Commission lacks jurisdiction to hear the appeal and the appeal should be dismissed. In the alternative, the Developers submit that the Minister carefully followed the applicable regulations, made no error in his decision, and the appeal should be dismissed on its merits.

(31) After a careful review of all the documents, the oral testimony of the witnesses, the written and oral submissions of counsel for the parties and the applicable law, it is the decision of the Commission to allow the appeal.

Jurisdictional Issue

(32) Subsection 28(1) of the Planning Act sets out the Commission's jurisdiction to hear appeals from decisions made by the Minister under the Planning Act:

28. (1) Subject to subsections (1.2) to (4), any person who is dissatisfied by a decision of the Minister that is made in respect of an application by the person, or any other person, pursuant to the regulations for

(a) a development permit;

(b) a preliminary approval of a subdivision or a resort development;

(c) a final approval of a subdivision;

(d) the approval of a change of use; or

(e) any other authorization or approval that the Minister may grant or issue under the regulations,

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

[emphasis added]

(33) Subsection 28(1.3) of the Planning Act is also directly relevant to the timing of this notice of appeal:

(1.3) A notice of appeal must be filed with the Commission within 21 days after the date of the decision being appealed.

(34) Before the Commission may proceed to consider the merits of this appeal, the Commission must determine whether it has the jurisdiction to hear this appeal. Ordinarily, a jurisdictional determination would be made before any hearing of the merits. In the present appeal, the Commission gave all parties an opportunity to file submissions on this issue and, despite deadline extensions, only the Appellants filed submissions at that time. Following the expiry of the final deadline extension, the Commission reviewed the file and advised the parties that the matter would be set down for a public hearing on September 28, 2016.

(35) Upon receiving notice of the hearing, it appears the Developers were prompted into action. The Developers retained legal counsel and filed written submissions (Exhibit D1) arguing that the Commission had no jurisdiction to hear the appeal. As the hearing had already been scheduled, the Commission agreed to hear arguments on the jurisdictional issue as well as testimony and arguments on the merits of the appeal. Evidence as to the surrounding factual circumstances would be helpful in deciding the jurisdictional issue in any event.

(36) The record before the Commission is clear that the Minister made his decision on April 29, 2015. However, this decision was not posted online by the Minister until February 5, 2016. This delay did not satisfy the condition in clause 23.1(1)(c) of the Planning Act:

23.1(1) Where

(a) the Minister makes a decision of a type described in subsection 28(1);

...

the Minister or council, as the case may be, shall, within seven days of the date the decision is made, cause a written notice of the decision to be posted

(c) on an Internet website accessible to the public;

[emphasis added]

(37) Prior to the proclamation of subsection 23.1 of the Planning Act, the issue of notice was frequently raised before the Commission. The issue was also considered by the Prince Edward Island Court of Appeal in Booth and Peake v. Island Regulatory and Appeals Commission 2004 PESCAD 18 [Booth and Peake]. In Booth and Peake, Madam Justice Webber stated at paragraphs 21 through 23:

[21] I find that Re Hache and Minister of Municipal Affairs (1969), 2 D.L.R. (3d) 186 (NBSCAD) applies in this province and the appeal period will begin to run when an appellant has received notice of the decision. This may be specific notice or general notice through posting or publication or by some other means. The bylaws of a community could establish the type of public notice that will be given upon the issuance of a building permit, e.g. publication in a newspaper or newsletter, posting in the community office. If the public can become aware of the decision by way of this public process then the process will likely satisfy the requirements of notice.

[22] Where, as in this case there is no process of public notice set out in either the Planning Act or the bylaws of the community, then time can only begin to run when an appellant has actual notice of the decision. Just seeing the mobile home on the property would not be notice of the issuance of a building permit for that home. It might have been placed on the property without a permit.

[23] Such notice of a decision is essential to give meaning to the appeal process. If this were not the case, the right to appeal would be illusory, rendering the statutory right of appeal meaningless. It would not be reasonable to interpret the statute in a way that renders a given right meaningless. ...

[emphasis added]

(38) The Commission has carefully reviewed the notice which was eventually posted on PEI Planning Decisions website and finds that this notice failed to comply with clause 23.1(1)(c) of the Planning Act. It was not posted "within seven days" of the decision being made by the Minister. The notice was also deficient when measured against clause 23.1(2)(d) of the Planning Act. It did not contain "the date on which the right to appeal the decision under section 28 expires." The evidence before the Commission also established a discrepancy in the description of the community where the Property was located. A proper description is required by clause 23.1(2)(a) of the Planning Act. Finally, the distinction on the website between decisions made in the last month and "archived decisions" was tied to the date that the decision was made and not the date on which the decision was published. Given the lapse of some nine months between those dates, this distinction meant that only a search of archived decisions would have revealed the decision made by the Minister in this case.

(39) In light of these findings, the Commission concludes that the Minister did not discharge his public notice obligation pursuant to section 23.1 of the Planning Act.

(40) Unlike the case of Booth and Peake, there was a statutory notice procedure in this case that, if followed, allowed Minister to dispense with the need for actual notice. General notice, when it satisfies the statutory criteria in section 23.1 of the Planning Act, is deemed to be sufficient. However, a "glitch" in the PEI Planning Decisions website resulted in the impugned decision being posted some nine months after it was made by the Minister. This defect was also compounded by other deficiencies in the notice required by s. 23.1 of the Planning Act.

(41) The Minister was solely responsible for ensuring that the requisite notice was posted on an Internet website accessible to the public and that the notice met the requirements set out in section 23.1 of the Planning Act. Given that the statutory procedure for general notice was not followed by the Minister, the Commission must consider the common law direction of the Court of Appeal in Booth and Peake.

(42) In Booth and Peake, Madam Justice Webber explained at paragraph 22 that, absent a process for public notice, the time for filing an appeal will begin when a party has actual notice of the decision. By insisting on actual notice, the law aims to ensure that the statutory right of appeal conferred by the Planning Act is not meaningless:

[22] Where, as in this case there is no process of public notice set out in either the Planning Act or the bylaws of the community, then time can only begin to run when an appellant has actual notice of the decision. Just seeing the mobile home on the property would not be notice of the issuance of a building permit for that home. It might have been placed on the property without a permit.

[emphasis added]

The appeal period will therefore begin when, based on the evidence before the Commission, Mr. Moerike had actual notice of the Minister's decision.

(43) Mr. Moerike testified that he regularly reviewed the PEI Planning Decisions website and that it was only when he decided, by chance, to select the button for "archived decisions" that he found the decision by the Minister on April 29, 2015. The archiving function was based on the date of the decision and not the date that the decision was posted on the website. Mr. Moerike testified that he first saw the notice a few days before his email dated February 16, 2016. He also testified that notice occurred about a week to ten days after the date that the decision was posted on the website. The decision was posted on the PEI Planning Decisions website on February 5, 2016.

(44) The Developers called no witnesses at the hearing. Mr. Carr, who testified for the Minister on this subject, was forthright and candid. His evidence acknowledged the "glitch" in the PEI Planning Decisions website. Mr. Carr's evidence was also consistent with the experience described by Mr. Moerike.

(45) The Commission finds Mr. Moerike to be a credible witness. Based on his testimony, his email of February 16, 2016 and all of the surrounding evidence, including the testimony of Mr. Carr, the Commission finds that Mr. Moerike had actual notice of the Minister's decision one week after it was posted on the PEI Planning Decisions website. For the purpose of calculating the time to file a notice of appeal, the Commission finds that Mr. Moerike had actual notice as of February 12, 2016 and twenty-one days after that date to file his notice of appeal. The notice of appeal was filed with the Commission on March 1, 2016. In conclusion, the Commission finds that the notice of appeal was filed within twenty-one days of Mr. Moerike receiving actual notice of the decision by the Minister.

(46) Accordingly, the Commission finds that it has jurisdiction to determine this appeal on its merits.

Merits of the Appeal

(47) The Commission regularly uses a two-part test to guide its consideration of an appeal under section 28(1) of the Planning Act. In the context of a decision by the Minister, those questions are:

whether the Minister followed the proper process and procedure required by the Planning Act, its regulations, and the law in general, including the principles of natural justice and fairness, when making a decision on the application; and
whether the Minister's decision on the application has merit based on sound planning principles within the field of land use planning and as identified in the Planning Act and its regulations.

(48) The position of the Appellants is that the proposed subdivision of the Property would permit a "rural tourism use" in an area known for surface water problems. The position of the Minister is that the Planning Act Subdivision and Development Regulations permit subdivision of the Property for rural tourism purposes and that surface water issues could be considered at the permit or development approval stage of the process. The Developers take the position that the Minister's decision is in full compliance with the Planning Act and all applicable regulations.

(49) Section 2 of the Planning Act sets its objectives. They include providing an effective mechanism for resolving land use conflicts and providing an opportunity for the public to participate in the planning process. In many cases involving subdivisions and development permits, until a municipal or ministerial decision is published and appealed to the Commission, there is no opportunity for public engagement and conflict resolution:

2. The objects of this Act are

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

(b) to encourage the orderly and efficient development of public services;

(c) to protect the unique environment of the province;

(d) to provide effective means for resolving conflicts respecting land use;

(e) to provide the opportunity for public participation in the planning process.

[emphasis added]

(50) Section 13 of the Planning Act Subdivision and Development Regulations imposes a number of mandatory obligations on the Minister. It requires subdivision designs to be based on sound planning principles. It also requires use suitability to be demonstrated. Finally, the Minister must have regard to a number of prescribed factors:

13. Subdivision designs shall be based on sound planning, engineering, and environmental principles, and shall demonstrate that the proposed subdivision is suited to the intended use, having due regard for

(a) compatibility with surrounding uses;

(b) the topography of the site;

(c) surface drainage on the site and its impact on adjacent parcels of land;
(d) traffic generation onto adjacent highways;

(e) availability, adequacy and the economical provision of utilities and services;

(f) the ability to further subdivide the land or adjoining land;
(g) the provision of lots suitable for the intended use;
(h) waste water management;

(i) water supply; and

(j) natural features.

[emphasis added]

(51) Section 13 of the Planning Act Subdivision and Development Regulations is very clear. Subdivision designs are to be based on sound planning principles and must demonstrate suitability for the intended use. Compatibility with surrounding uses, topography, surface water drainage, and other factors are specifically and expressly listed for consideration. Given the use of the word "shall" in this provision, these are mandatory obligations for the Minister and his employees at the subdivision stage. In short, these are required design considerations and relevant factors when the discretion of the Minister is being exercised to approve the subdivision of land.

(52) In this case, there is no evidence that the Minister considered section 13 of the Planning Act Subdivision and Development Regulations before making the decision under appeal. Mr. Carr testified that this subdivision application was not referred to the planning staff of the Minister and planning principles were not applied. While it does appear, based on the testimony of Mr. Carr, that the employees of the Minister are now more focused on land use planning and frequently consult with planning-related staff, that was not the practice at the time that this application was considered by the Minister. This testimony was corroborated by Mr. Lloyd, who also acknowledged that employees of the Minister have struggled in applying section 13 of the Planning Act Subdivision and Development Regulations.

(53) While Mr. Lloyd did testify that planning considerations are generally taken into account when a development permit is sought, there are a number of concerns with the Minister taking that approach:

First, that practice does not reflect the clear, unequivocal, and mandatory language in section 13 of the Planning Act Subdivision and Development Regulations. The Minister and his delegates are obligated to follow the law.
Second, as the Commission has stated in previous decisions, the corridor of considerations for the Minister (and the Commission on appeal) narrows as a landowner moves through the development process from zoning and subdivision to development and construction. Relevant factors missed or ignored at the subdivision stage may be irrelevant at the development stage. This principle is reflected, for example, in section 28(4) of the Planning Act. If sound planning principles are going to have any meaning, each step in the land use and development process must be followed.
Third, the expectations of Mr. Lloyd were not consistent with the legal position taken by counsel to the Minister, who stated in his post-hearing written submission on October 12, 2016 that section 13 of the Planning Act Subdivision and Development Regulations is not considered when an application for a development permit is processed.

(54) In summary, if section 13 of the Planning Act Subdivision and Development Regulations was not considered when the Minister granted subdivision approval and it is not considered when the Minister processes a development permit, then section 13 of the Planning Act Subdivision and Development Regulations will have been ignored by the Minister in this case. That result is contrary to the express wording of the Planning Act Subdivision and Development Regulations. It is simply not open to the Minister to ignore - or even defer - regulatory considerations that "shall" apply to subdivision designs.

(55) Given the failure of the Minister to consider the relevant and mandatory criteria listed in section 13 of the Planning Act Subdivision and Development Regulations, the Commission allows the appeal and quashes the April 29, 2015 decision by the Minister. The grant of preliminary approval to subdivide one lot from the Property for "rural tourism use" is hereby set aside. Nothing in this decision by the Commission prevents, however, a future application by the Developers.

(56) The Commission observes that Mr. Moerike was advised in an email from Mr. Carr that Mr. Carr expected that the Commission could extend the deadline for filing an appeal. The Commission confirms that this is incorrect. When a notice of decision has been properly given, the Commission has no jurisdiction to extend the statutory time for the filing of a notice of appeal. Pursuant to subsection 28(1.3) of the Planning Act a notice of appeal must be filed within twenty-one (21) days after the date of the decision being appealed.

(57) Finally, the Commission observes that there was much discussion at the hearing about the practice of permitting a landowner, who is a licensed soil assessor, to test his or her own property when seeking subdivision approval from the Minister. While there is no evidence that anything improper occurred in this case, the appearance of a potential conflict of interest can sometimes raise the same questions and concerns as an actual conflict of interest. The policies or guidelines applicable to soil assessors in the province may be deserving of further review by the Minister.