Docket: LA93014
Decision: LA93-14
IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Betty McGee (the Appellant) of Southport, Prince Edward Island, against a decision of the Southport Community Council (The Council) to require conveyance of a proposed public right-of-way by the Department of Transportation and Public Works before a building permit for a dwelling is issued for lot #106 in the Rodgerson Subdivision (Provincial Property Number 589184) in Southport, P.E.I.
DATED the 22nd day of October, 1993.
John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner
James Nicholson, Commissioner
Decision
Appearances
1. For the Appellant
Betty McGee the Appellant
2. For the Community of Southport
Carol Lowther Administrator, Southport Community Council
Philip Wood Planning Consultant
Reasons for Decision
I. BACKGROUND
In accordance with the Community of Southport Official Plan 1990 and the Southport Zoning & Subdivision Bylaws 1990, Council has the authority to approve proposals for the subdivision of land and applications for building permits.
On August 26, 1993, Bill Dobbin, Development Officer for the Southport Community Council forwarded a letter to Betty McGee regarding her building permit and subdivision application.
On September 17, 1993, Betty McGee hand delivered a notice of appeal to The Island Regulatory and Appeals Commission.
The Commission commenced a hearing into the matter on Wednesday, October 20, 1993, in Charlottetown, P.E.I.
II. PRELIMINARY MATTERS
A. Matters Raised by the Commission
The Commission raised the matter concerning the expiration of the appeal period and whether the Commission had jurisdiction to hear the appeal.
B. Matters Raised By the Community Council
In response to the matter of the expiration of the appeal period the representatives of the Community Council submitted that the appeal was not properly before the Commission because the appellant failed to file her notice of appeal prior to the expiration of the 21 day appeal period.
The Community further submitted that the letter of August 26, 1993 from Bill Dobbin to Betty McGee, did not constitute a decision of Council, and therefore there was no decision to appeal.
Consequently, the Appellant does not have standing in this matter.
C. Matters Raised by the Appellant
The appellant submitted that Carol Lowther, the administrator informed her that the appeal period was 30 days.
The Appellant further submitted that she had made attempts to deliver the letter of appeal on September 15, 1993 however she was unable to locate the office of the Commission. On September 17, 1993, after locating the office, the Appellant hand delivered the notice of appeal.
III. DECISION
The representatives of the Southport Community Council submitted that the August 26, 1993, letter from Bill Dobbin, Development Officer to Betty McGee did not constitute a decision of Council and that Council had not made a decision concerning the subdivision or the building permit application. They submitted that the letter was only one step in the subdivision approval process and that it instructed Ms. McGee of the bylaw requirements for subdivision approval of land within a Comprehensive Housing Development (CD2) Zone.
The Commission understands the submission of Council however, Section 28(1) of the Planning Act provides that a person who is dissatisfied by a decision of a Council ... in respect of the administration of the bylaws can appeal to the Island Regulatory and Appeals Commission. The Commission considers the letter of August 26, 1993, a decision of Council within the meaning of the term administration of the Community of Southport Zoning and Subdivision Control Bylaws.
28(1)
Subject to subsection (2), a person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act, may, within twenty-one days, appeal to the Commission.
The Commission finds that the letter sets out bylaw requirements that must be met by the applicant before the subdivision application could be approved by Council. Consequently, even though the subdivision application process is not complete and Council has not made a final decision, the Commission finds the contents of the letter to constitute a decision for purposes of Section 28(1) and therefore subject to appeal.
Section 28 of the Planning Act provides the right of appeal to the Commission and prescribes a 21 day appeal period. In accordance with Section 23(5) of the Interpretation Act the appeal period started on August 27, 1993, the day after the date of the letter. Pursuant to Section 23(5) of the Interpretation Act the computation of time is defined:
23(5)
In the calculation of time not expressed in clear days, or other period of time not referred to in subsection (4), the first day shall be excluded and the last day included.
The Notice of Appeal was filed by hand at the office of the Commission on September 17, 1993. Applying the formula for the computation of time under Section 23(5) the Commission finds that the appeal was filed on the 22nd day.
Ms. McGee explained that she had been told by Carol Lowther, the Administrator of the Community of Southport that she had 30 days to appeal. She also informed the Commission that she had tried to deliver the letter of appeal on September 15, 1993 but was unable to locate the office of the Commission until September 17.
In determining its jurisdiction the Commission is guided by the principle that tribunals themselves are not empowered as a rule to make a decision the effect of which is to enlarge the statutory time limit for appeal. (Rogers Canadian Law of Planning and Zoning, pp. 295-296). Section 28.(1) of the Act prescribes the limit of 21 days and in the Commission's view it is not empowered to expand that limit to 22 days. In the result, the Commission finds that its jurisdiction to hear this appeal was lost with the expiration of 21 days.
The Commission hereby declares that it does not have jurisdiction to hear the appeal.
Mr. Phil Wood indicated to the Commission that despite Council's belief that the appeal was not properly before the Commission and the Appellant did not have standing they would agree to the Commission hearing the matter giving the Appellant the opportunity to express her concerns. The Commission presumes the objective would be to clarify positions and concerns or misunderstandings and hopefully reach some amicable solution. The Commission believes that this process should now continue between the Council and the Applicant until Council reaches a decision to either approve or deny the application.
After reviewing the content of the letter of August 26,1993, and the submission of the representatives of the Community Council, the Commission believes that even though it has decided that it does not have the jurisdiction to hear this appeal the decision does not preclude Ms. McGee and the Council from proceeding with the subdivision and building permit application process. Together the representatives of the Council indicated that the subdivision approval process was not complete and Council had not reached a final decision. The Commission emphasizes that, in its opinion, the lack of jurisdiction only applies to the letter of August 26, 1993, and the filing of the notice of appeal on September 17, 1993. This decision of the Commission does not affect the Appellant's or any other dissatisfied person's right to appeal any future decision of Council regarding the subdivision or the building permit provided it is filed within the prescribed 21 day appeal period.
DATED at Charlottetown, Prince Edward Island this 22nd day of October, 1993.
BY THE COMMISSION:
John L. Blakney, Vice-ChairmanJames Nicholson, Commissioner
Myrtle Jenkins-Smith, Commissioner
