Order LA95-19 - LA95010 - Planning Appeal - Sobeys Inc. v. Dept. of Provincial Affairs & Attorney General (Nov 15, 1995)

Docket LA95010
Order LA95-19

IN THE MATTER of an appeal pursuant to Section 28 and 37 of the Planning Act by Sobeys Inc. against a decision by the Department of Provincial Affairs and Attorney General to issue a Provincial Development Certificate on April 10, 1995 and a decision by the City of Charlottetown to issue a Building Permit on April 12, 1995.

BEFORE THE COMMISSION

on Wednesday, the 15th day of November, 1995.

John L. Blakney, Vice-Chair
Carl Riggs, Commissioner
James Nicholson, Commissioner

Reasons for Decision

and Order

Contents

Appearances & Witnesses

Reasons for Order

I. Introduction

II. Discussion & Findings

Order

Appearances & Witnesses

1. For the Appellant - Sobeys Inc.

Counsel:
Mark Ledwell and Charles Keizer

Witnesses:
Christopher Hames

2. For the Developer - APM Landmark Inc.

Counsel:
William Lea, Q.C.

Witnesses:
Tim Banks

3. For the City of Charlottetown

Counsel:
David Hooley

Reasons for Order

I. Introduction

On March 1, 1995 APM Landmark Inc. (the Developer) made application for a building permit to the City of Charlottetown (the City).

On April 6, 1995 the City made application to the Minister of Provincial Affairs and Attorney General (the Minister) for a provincial development certificate.

On April 10, 1995 a three party development agreement. was signed by the Minister, the City and APM Landmark Inc.

On April 10, 1995 the Minister issued a provincial development certificate for a retail store of approximately 44,550 square feet to be constructed at 455 University Avenue, Charlottetown.

On April 12, 1995 the City issued a building permit subject to a development agreement dated April 12, 1995 between the City of Charlottetown and Prince Edward Holdings Inc. (the Developer).

On May 1, 1995, Sobeys Inc. and Sobeys Leased Properties Ltd. appealed both the issuance of the provincial development certificate and the building permit to the Island Regulatory and Appeals Commission (the Commission). The appeal by Sobeys Leased Properties Inc. was subsequently withdrawn on or about September 25, 1995.

On July 14, 1995 legal counsel for the Commission met with legal counsel for the parties. At this meeting, eight (8) preliminary matters were identified and agreed upon. These preliminary matters include:

Will A.P.M. be a party at the hearing?
Who has jurisdiction to deal with the variance issue?
Should I.R.A.C. hear the appeal when there is a Judicial Review Application before the Court?
What is the scope of review by I.R.A.C.?
Is this both a Section 37 and Section 28 appeal?
What will the scope of the evidence be at the hearing?
What is the effect of a new application to the City by A.P.M. on the process?
Is Sobeys a person aggrieved?

On August 9, 1995 the Department of Provincial Affairs and Attorney General advised the Commission that they would not be appearing in the I.R.A.C. hearing of the appeal.

The Commission heard submissions and arguments on these preliminary matters on September 5, 25, 26 and 27, 1995. The Commission received written summaries on the preliminary matter - Is Sobeys a person aggrieved on October 18 and written rebuttals on October 23, 1995.

II. Discussion & Findings

With respect to the eight preliminary matters raised by the appeal, the Commission has decided as follows:

1. Will A.P.M. be a party at the hearing?

The Appellant does not object to APM Landmark, Prince Edward Holdings or Loblaws/Atlantic Wholesalers seeking late intervener status.

The Developer argues that its rights may be affected by any decision the Commission makes in this appeal proceeding and therefore they are a necessary party to the proceeding.

The City does not object to APM being a party in these proceedings.

The Commission finds that A.P.M. Landmark Inc. made application and received approval for a building permit and is a party to a tripartite development agreement between the Minister and the City. As a result, the Commission finds that any decision reached in these proceedings may affect the rights of the Developer and therefore considers A.P.M. Landmark Inc. a party to these proceedings.

2. Who has jurisdiction to deal with the variance issue?

The focus of Sobeys' appeal is that the development does not comply with the municipal bylaws, the Planning Act, and the Regulations made pursuant to the Act such that a building and development permit should not have been issued. The Appellant argues that a variance is part of the process relating to the issuance or denial of a building permit and therefore the Commission should consider issues relating to the variance.

The Appellant requests the Commission adjourn these proceedings until after the judicial review application is heard. Once there has been a ruling on the variance issue the Commission will be in a position to decide fully on the issues relating to the issuance of the building permit.

The Developer argues that the Commission's appellate jurisdiction is found in Section 37.(1) of the Act and as this is an appeal on the issuance of a building permit in respect of a major development by the City, the Commission's decision is limited to the building permit. The Commission has no jurisdiction under Part VI of the Act to deal with the variance issue.

Further to this matter, the Developer argues that the appeal provisions pursuant to Section 28 of the Act pertain only to decisions by Council in respect to the administration of bylaws made pursuant to the powers of the Act. In granting the variance, the decision by the City was made under Section 5.(dd) of the Charlottetown Zoning and Development Bylaw. At the time this decision was made, the authority for Council to make such bylaws was found in the City of Charlottetown Act, not the Planning Act. Therefore the decision of Council to grant the variance is not a decision subject to appeal in this proceeding, under either Section 28 or 37 of the Act.

The position of the City is that the Commission, in order to make a comprehensive and informed decision, must review the whole process, including granting the variance. The City argues that to take any other interpretation would be absurd and that if the Commission's jurisdiction did not include these underlying issues the parties may be faced with a multiplicity of proceedings under both the appeal process and the judicial review process. If the Commission decides that it does not have jurisdiction, the Commission would be required to adjourn until a decision could be made on whether the variance is valid in judicial review proceedings.

In considering the evidence and arguments as submitted by all parties, the Commission finds that it does not have jurisdiction to deal with the variance granted by the City on March 27, 1995. The decision by the City to grant the variance was made under Section 5.(dd) of the City's bylaws. The Bylaws of the City were enacted under the City of Charlottetown Act. At the time the decision was made to grant the variance, the Commission did not have the appellate jurisdiction to hear appeals on decisions made by the City, with the exception of major developments where appeals could be made under Section 37 of the Planning Act.

On the matter of the variance the Commission notes that this issue is also part of the case being put forward by the Appellant for judicial review. The Commission understands that this proceeding has been postponed on a number of occasions and is now scheduled to proceed on December 18, 1995. This has caused the Commission some concern, since the variance and the questions pertaining to the validity of the variance form the foundation upon which all subsequent decisions regarding the proposed development were made. If in the judicial review process it is found that the variance is faulty this may render all subsequent decisions pertaining to this development a nullity and force the commencement of a new process. If the Commission proceeds at this time and the Courts make this decision, the proceeding before the Commission may be a total waste. However, on balance it appears that the public interest would be better served by the Commission continuing with the hearing of this appeal as soon as possible.

3. Should I.R.A.C hear the appeal when there is a Judicial Review Application before the Court?

The Appellant takes the position that because the Commission does not have the jurisdiction to deal with the variance and based on the relationship of the variance with all subsequent decisions, this matter should be settled first by the Court. In the result, the Commission should adjourn its proceedings until after the judicial review application is heard.

The Developer, however argues that the judicial review of the Council's and the Minister's decision does not affect the duty of the Commission to hear appeals pursuant to the provisions of the Planning Act. The Developer argues that the appeal may have an impact on the judicial review proceedings and those proceedings are of no consequence to the Commission's proceedings, hence the Commission should proceed to hear the matter.

The City's position is that the parties have mutually agreed with the Court that the judicial review proceedings will be held in abeyance until the Commission has made its ruling on whether it has broad jurisdiction to deal with the variance issue. If the Commission decides that it does have such jurisdiction then there will be no need to proceed with the judicial review proceedings.

The Commission has found (see above) that it does not have broad jurisdiction to deal with the decision of the City to allow the variance issue. At the same time there has been no argument made that the Commission does not have jurisdiction to deal with the other matters raised in the appeal. These matters must be dealt with by the Commission in an expeditious manner. However as stated above the Commission does not feel that it is reasonable to delay these proceedings; the failure to hold these hearings could cause substantial delay to the developer if this appeal should fail. Therefore, the Commission will continue with these proceedings despite the obvious ramifications if the Court finds the variance a nullity.

4. What is the scope of review by I.R.A.C.?

The Appellant contends that the scope of review which may be conducted by the Commission must be determined within the context of the functions of the Commission to hear and decide matters relating to land use pursuant to the provisions of the Island Regulatory and Appeals Commission Act and the powers conferred upon the Commission pursuant to Sections 28 and 37 of the Planning Act.

The Appellant argues that the nature of an appeal before the Commission is that of trial de novo. The Commission may consider the merits of a decision of the Municipality or the Minister in the context of a major development application. In providing its disposition the Commission is free to substitute its decision for that of the Municipality and the Minister. The appeal before the Commission is not simply a review.

The Developer contends that the Commission does not have the jurisdiction to review any participation by the Minister in granting a permit by the municipality. The only issue within the Commission's jurisdiction is that related to the decision of the City to issue the building permit. Although the scope of the Commission's review and decision making power is unlimited, it must relate to the purpose of the legislation as set out in Part VI of Planning Act. That is, the Commission in terms of its conduct and disposition of an appeal may do whatever it reasonably thinks is appropriate in order to ensure that a proposed development will not impose a burden on the community in terms of land use, the environment, public services and traffic.

The City submits that in order for the Commission to make a comprehensive and informed decision in regard to whether the building permit was correctly granted it must review the entire process. The City argues that the Commission has the broad jurisdiction to review all the steps leading to the granting of the permit including the granting of the variance.

On this issue, the Commission finds that it has only the jurisdiction granted to it by the legislation. Pursuant to Section 37 of the Planning Act, the Commission has the responsibility to hear an appeal by any person aggrieved by a decision of a municipality or the Minister to issue or deny a building permit in respect of a major development. In this instance, it is the decision of the City to issue a building permit that is under appeal. In terms of the Minister's decision to grant a provincial development certificate, the Commission finds that this decision is not subject to appeal. The Minister's decision to issue a provincial development certificate was made under Section 34 of the Planning Act and therefore is not a decision by the Minister in the administration of the Planning Act regulations or a decision by the Minister to issue a building permit in respect of a major development pursuant to Section 37.

5. Is this both a Section 37 and Section 28 appeal?

The Appellant argues that the decision by the City to issue a building permit was made with respect to the administration of regulations and by-laws under Section 28. In this case Sobeys argues that it is a person who is dissatisfied by a decision of Council and therefore has appealed under this section. In addition, pursuant to Section 37, Sobeys argues it is also a person aggrieved and has therefore appealed under this section.

The Developer takes the position that Section 28 applies to an appeal under Section 37. Specifically subsections (2), (3), (4) and (6) of Section 28 apply to Section 37. Section 28 however does not create an independent appeal provision if a Section 37 appeal is dismissed. Under Section 28 one must be dissatisfied with a decision, while Section 37.(1) applies to a person aggrieved. Further there is no appeal under Section 37.(1) from the decision of the Minister to issue a provincial development certificate. The Developer submits that this is an appeal under Section 37.

The City has submitted no position on this question.

The Commission finds that the building permit issued by the City is for a major development and therefore this appeal is a Section 37 appeal under Part VI of the Planning Act. Clearly the intent of the legislation is to create a higher threshold limiting the right of appeal to any person aggrieved as opposed to any person who is dissatisfied. The Commission is of the view that since Section 37 of the Planning Act provides an appeal process for appeals relating to major development, therefore Section 37 is the proper appeal section to be used in this case along with the portions of Section 28 incorporated by Section 37.(3). It is the opinion of the Commission that Section 28.(1) of the Planning Act does not apply to this appeal.

6. What will the scope of the evidence be at the hearing?

The Appellant argues that an appeal before the Commission is that of a trial de novo. The Commission is free to substitute its decision for that of the Municipality or the Minister. The appeal is not simply a review.

The Developer's position is that the evidence must be relevant and therefore connected to the issues as defined by the purpose of the legislation. The purpose of the legislation is to ensure that a major development does not impose a burden on the community in terms of land use, the environment, public services and traffic.

The City argues that any review of the evidence in this case should be limited as such to a review of the record and the evidence which Council considered in its own decision making process.

The Commission finds that the scope of evidence shall be limited to that which is/was necessary for the City to consider in satisfying the criteria outlined under Section 31 of the Planning Act. This information is not limited only to what the City did consider but shall also include what the City should have considered or would have been reasonable to have considered in allowing Council to reach a decision to issue the building permit.

7. What is the effect of a new application to the City by A.P.M. on the process?

The Developers have advised that there is now no new application before the City.

Therefore, the Commission finds that a decision on this question is not required.

8. Is Sobeys a person aggrieved?

On the question of whether Sobeys is a person aggrieved, the Appellant argues that this decision involves a finding of fact which the Commission must determine after the presentation of evidence - this matter cannot be decided on a preliminary basis.

The Appellant argues that the answer to this question can only be resolved by an analysis of the legislation, the Act and Regulations, and the purpose that the legislation is designed to achieve. Accordingly, the determination of whether a person is aggrieved by a decision to allow a major development should be construed liberally and more importantly, in a manner consistent with the scheme of the legislation, the object of the legislation and the purpose for which the legislation is enacted.

The Appellant argues that Sobeys is a person aggrieved within the meaning of Section 37.(1). And further there are no authorities capable of binding the Commission to any other interpretation. There is no basis for limiting the meaning of aggrieved to the infringement of a legal or property right.

The Appellant contends that the test to determine whether a party is aggrieved should be similar to that found by the Supreme Court of Canada in Re British Columbia Development Corp. et al. and Friedmann et al. (1984), 14 D.L.R. (4TH) 129, at p. 146 where a party is aggrieved or may be aggrieved, whenever he genuinely suffers, or seriously is threatened with, any form of harm prejudicial to his interest, whether or not a legal right is called into question, or by the P.E.I. Court of Appeal in Beaton v. P.E.I. Land Use Commission (1979), 20 Nfld. & P.E.I.R. at p. 140: A person aggrieved has been said to be one who has a particular grievance of his own beyond some grievance suffered by him in common with the rest of the public.

If the Commission opts to take the narrower test as suggested by the Developer, Sobeys says that its legal rights are or will be infringed by the proposed major development and that its legal rights are contained in its license agreement with K-Mart Canada Ltd. and K-Mart's lease agreement with its landlord, Wildan Properties Ltd. In addition Sobeys argues that the proposed development will negatively affect their store by way of among other things traffic and land use concerns.

The Appellant contends that there is no good reason to support the view that the test to determine whether an appellant has standing should be higher and more limited in Section 37 than Section 28. Regardless of the test, the Appellant contends it can meet any test to determine standing. It is argued they are aggrieved because of its long standing use and enjoyment of the premises and because the common areas will be interfered with by the proposed development.

The Developer argues that Sobeys is not a party aggrieved within the meaning of Section 37.(1) of the Act. With a major development, the legislature meant to refer not to someone who is merely dissatisfied with a decision but to prescribe a different threshold - there is a difference between a person affected by or interested in a decision and someone aggrieved by a decision.

The Developer argues that the test to determine whether a party is aggrieved is to establish that a person is aggrieved if he has suffered a legal grievance or the imposition of a burden or an obligation or been denied some personal or property right.

The Developer contends that Sobeys has failed to discharge the onus upon it of providing evidence that would allow the Commission to conclude that Sobeys will be deprived of any pecuniary, property or other legal rights in such a way as to constitute it a person aggrieved or that it has had some obligation imposed upon it.

The Developer argues that the statements put forward by Tom DeBlois demonstrate that the objectives of Sobeys in this appeal are entirely commercial and relate to competition. There was no evidence put forward from which anyone could conclude that it is probable that Sobeys will be affected by the factors on which it relies.

The City submits that the test to be used to determine an affected or interested person calls for a less stringent test then would be called under the legislation speaking of an aggrieved person. Although the authorities do not provide a clear definition of person aggrieved the City suggests that this interest cannot simply be of a competitive nature.

The City argues that Sobeys does not have a legal basis on which to found this appeal. Sobeys does not have a legal right of protest under its Licensee Agreement.

The City contends the Development Agreement allows for amendments, subject to the City's approval. It is obvious a revised plan would be required.

The City argues that Sobeys' only interest remaining in this appeal is that of a competitive nature, which is not a valid or legitimate interest to qualify as a person aggrieved. Therefore Sobeys has no right to challenge the City's decision to grant the building permit, the development agreement, etc.

In considering this issue, the Commission believes that Sobeys has presented substantive evidence to meet the evidentiary test that they are a person aggrieved by the decision of the municipality to issue a building permit for the proposed major development.

Pursuant to the provisions of Section 28, any person who is dissatisfied by a decision... may appeal to the Commission.

Section 37 states any person aggrieved by a decision... may appeal to the Commission...

The Commission believes that the intent of the legislation is to place a higher burden on those appealing under Section 37 than it places on those appealing under Section 28.

In determining whether Sobeys is a person aggrieved, the Commission has reviewed the various legal authorities presented by the parties. In its review, the Commission finds that aggrieved involves a spectrum of effects, including those put forward by the Developer.

Overall, in trying to determine the meaning of aggrieved in any particular case the courts have reviewed the purpose of the Act in question. This review indicates the type of interests that are relevant in the analysis of aggrieved in that particular case.

Here we have the Planning Act whose purpose is to deal with land related issues - use and effect. Such issues would include ingress and egress, the functions allowed on certain parcels, affects on density and existing uses, to name just a few.

In this case, Sobeys has presented evidence which supports that they are affected by the development proposed. That evidence includes the following:

redirecting parking aisles;
eliminating a row of parking;
parking spaces over the property line;
parking spaces in loading area of K Food;
location of transformer and loading dock of the proposed development;
affect on existing loading and receiving area of K Foods;
and other items referred to by Chris Hames in his oral testimony.

This evidence indicates that Sobeys will be affected by the proposed development in ways which are within the overall scope of the Planning Act. As such, we find Sobeys to be a person aggrieved and to have standing to appeal the decision by the City to issue a building permit.

IN THE MATTER of an appeal pursuant to Section 28 and 37 of the Planning Act by Sobeys Inc. against a decision by the Department of Provincial Affairs and Attorney General to issue a Provincial Development Certificate on April 10, 1995 and a decision by the City of Charlottetown to issue a Building Permit on April 12, 1995.

Order

WHEREAS Sobeys Inc. has appealed a decision by the Department of Provincial Affairs and Attorney General to issue a provincial development certificate and the City of Charlottetown to issue a building permit.

AND WHEREAS the Commission heard the appeal on preliminary matters at public hearings conducted in Charlottetown on September 5, 25, 26 and 27, 1995 after due public notice;

AND WHEREAS the Commission has issued its findings in this matter in accordance with the Reasons for Decision issued with this Order;

NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act

IT IS ORDERED THAT

1. APM is a party to this Appeal and Hearing.

2. The Commission does not have jurisdiction to deal with the variance presented by the City on March 27, 1995.

3. The Commission will, in these circumstances, continue with these proceedings.

4. The Minister's decision to grant the provincial development certificate is not subject to appeal before the Commission.

5. This is an appeal under Section 37 of the Planning Act and Section 28.(1) does not apply to this appeal.

6. The scope of evidence shall be limited to that which is/was necessary for the City to consider in satisfying the criteria outlined under Section 31 of the Planning Act. This information is not limited only to what the City did consider but shall also include what the City should have considered or would have been reasonable to have considered in allowing Council to reach a decision to issue the building permit.

7. No order is necessary.

8. Sobeys is a person aggrieved under Section 37.(1) of the Planning Act and has standing to appeal the decision by the City to issue the building permit.

DATED at Charlottetown, Prince Edward Island, this 15^th day of November, 1995.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Carl Riggs, Commissioner

James Nicholson, Commissioner

NOTICE

Section 12 of the Island Regulatory and Appeals Commission Act 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.

Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.

Sections 13.(1) and 13(2) of the Act provide as follows:

13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.

(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.