Order LA96-15 - LA96026 - Planning Appeal - Donald M. Stewart v. Dept. of Provincial Affairs & Attorney General (Dec 9, 1996)

Docket LA96026
Order LA96-15

IN THE MATTER of an Appeal by Donald M. Stewart against a decision by the Minister of Provincial Affairs and Attorney General dated September 9, 1996.

BEFORE THE COMMISSION

on Monday, the 9th day of December, 1996.

John L. Blakney, Vice-Chair
Clayton Bulpitt, Commissioner
Anne McPhee, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Preliminary Matters

3. Decision

4. Disposition

Order

Appearances & Witnesses

1. For The Appellants

Counsel:
Horace B. Carver, Q.C.

2. For The Developer

Counsel:
Tracey L. Clements

3. For the Minister

Witness:
Don Walters

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 by Donald M. Stewart (the Appellant) against a decision by the Minister of Provincial Affairs and Attorney General (the Minister) to approve a building permit (permit number C-269-96) granted to Wayne Dompierre (the Developer) to relocate an accessory building on Provincial Parcel Number 142117, located in the Community of Grand Tracadie.

The building permit was issued on September 9, 1996 (Exhibit D4).

On September 30, 1996 the Appellant submitted a Notice of Appeal (Exhibit A3) to the Island Regulatory and Appeals Commission (the Commission).

The Commission heard the appeal at a public hearing held on November 18, 1996.

2. Preliminary Matters

At the commencement of the hearing Mr. Carver raised a preliminary matter stating that the application for the building permit is defective and the Department should have rejected the application outright. In addition, he argued that the Department misinterpreted the Regulations to such an extent that the permit issued should be null and void and therefore, it is inappropriate for the Commission to hear this appeal. In support of this preliminary matter, Mr. Carver presented four preliminary issues as follows:

A. Site Plan

Mr. Carver submits that when a site plan is required by the Minister in accordance with Section 22.(1) of the Regulations, it must be completed in full and satisfy Part II, Section 2 of the Application (identified as Exhibit D2.1) which sets out what is to be shown on the plan, including:

dimensions of your lot;
existing and proposed buildings;
distance between the buildings;
distance to property lines and centre of the road;
location of the driveway, well, septic tank, and absorption field;
slope of land (indicated by arrows)

Mr. Carver submits that once a site plan is required by the Minister there is no discretion on the part of the Applicant as to what information can be shown - all information must be provided. In this case, Mr. Carver argues that the site plan (identified as Exhibit D2.3) does not show all the items required in Part II, Section 2 of the Application and therefore the application is deficient and should not have been processed by the Department.

On behalf of the Minister, Mr. Walters submits that because the application is to move an accessory building onto a lot, the level of detail as requested on the application is not required. Mr. Walters contends that it would be unreasonable to require the applicant in this case to provide all the information in accordance with the site plan requirements.

Ms. Clements offers no opinion and relies on the arguments as presented by the Minister.

B. Certification

Mr. Carver submits that when a site plan is required, the applicant must certify an agreement to develop the site in accordance with the plan, pursuant to the provisions of Section 22.(1) of the Regulations. In this case there is no certification. Part III of the Application (Exhibit D2.1) states: I hereby certify that the information provided in this application is correct. Mr. Carver argues that this does not certify the applicant's agreement to develop the site in accordance with the plan as required by Section 22.(1).

Mr. Carver submits that because there is not certification, the application is incomplete and the Minister should not have issued the building permit.

Mr. Walters contends that the signed application certifies the applicant's agreement to meet the conditions of the application form. Mr. Walters submits the Department only requires the applicant to sign the application which satisfies the certification requirements.

Ms. Clements takes the position that the application signed by Wayne Dompierre and the building permit (identified as Exhibit D4) issued by the Minister specifically provide that the permit is being granted according to the plans and information submitted. Ms. Clements states that the applicant is required to relocate the building in accordance with the diagram attached to the application.

C. Location of Building

Mr. Carver states that the proposed location of this building, located in the side yard and front yard, fails to comply with the provisions of Section 44 of the Regulations. Mr. Carver submits that because the Regulations only allow an accessory building to be placed in the rear yard, the location of this building fails to meet these requirements and the application should not have been considered and the permit should not have been granted.

Mr. Walters' response is that Section 44.(e) of the Regulations refers to a farm and is not applicable in this case.

Ms. Clements takes the position that Section 44 does not specifically state that there cannot be construction in the side yard. Ms. Clements submits that based on clear principles of statutory interpretation, there is nothing in Section 44 which precludes the construction in the rear yard. This section merely limits the location of construction when it deals with the front yard or the rear yard and there is no such limitation set out with respect to the side yard.

D. Ownership

Mr. Carver submits that the building which is to be moved was built by Wayne Dompierre and her husband Robert Albracht and is located on land which they jointly own. The proposal is to move this building to an adjacent parcel of land which contains the main building - a cottage, which is owned solely by Wayne Dompierre. Mr. Carver submits that in accordance with the definition of "accessory building" (contained in Section 3 of the Regulations) the subordinate building, which in this case is the garage, must be located on the same parcel of land and under the same ownership as the main building. In this case, because the Regulations have not been complied with, the permit should not have been issued.

Ms. Clements agrees with Mr. Carver on the issue of ownership and submits that parcel number 142117 is solely owned by Wayne Dompierre and the parcel where the building is currently located is held jointly by Ms. Dompierre and her husband Robert Albracht. Ms. Clements takes the position however, that this should not create a problem as there are probably numerous occasions where land is being held singly either by one spouse or another yet the two spouses construct a building on that property. Ms. Clements states that she doubts whether the Minister requires a separate deed of conveyance requiring the property be conveyed over into both their names.

Mr. Walters offers no opinion on this issue.

3. Decision

As to the preliminary matter raised by Mr. Carver and his submission that the Commission is without jurisdiction to hear this appeal because the application did not meet the requirements of the Regulations and therefore the permit issued by the Minister should be null and void, the Commission has determined the following:

In order for the Commission to have jurisdiction to hear an appeal pursuant to Section 28 of the Planning Act, the Minister must make a decision in the administration of the Planning Act Regulations, and any person who is dissatisfied by this decision may appeal to the Commission within the prescribed time, stating both grounds and relief.

In this case, it is clear that Mr. Walters, acting on behalf of the Minister, decided to issue a building permit (number C-269-96) to Wayne Dompierre on September 9, 1996. This was a decision of the Minister in the administration of the Regulations which under Section 28 of the Act can be appealed.

Subsequent to the building permit being issued, Mr. Donald Stewart filed a Notice of Appeal, pursuant to Section 28 of the Act, with the Commission on September 30, 1996.

Upon review of the record and submissions, the Commission finds that a notice of appeal was filed against a decision of the Minister or his agent and was within the prescribed time frame. Therefore, the Commission finds the Appellant meets the requirements of Section 28 and this is enough to give the Commission jurisdiction to hear this matter.

Based on the submissions made by the parties, the Commission believes that the issues raised as preliminary matters by Mr. Carver are not matters related to the Commission's jurisdiction. These are matters that go to the very substance of this appeal which can only be decided by the Commission after a full hearing of the evidence.

As a result, the Commission finds that it does have jurisdiction to hear this appeal.

The Commission will continue with these proceedings on a date to be fixed.

4. Disposition

The Commission does have the jurisdiction to hear this appeal.

IN THE MATTER of an Appeal by Donald M. Stewart against a decision by the Minister of Provincial Affairs and Attorney General dated September 9, 1996.

Order

WHEREAS Donald Stewart. the Appellant has appealed a decision of the Minister of Provincial Affairs and Attorney General, dated September 9, 1996.

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on November 18, 1996 after due public notice;

AND WHEREAS legal counsel for the Appellant has raised a preliminary matter that the Commission has no jurisdiction to hear this appeal;

AND WHEREAS the Commission has issued its findings on this preliminary 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

1. The Commission does have jurisdiction to hear this appeal and will continue the proceedings on a date to be fixed.

DATED at Charlottetown, Prince Edward Island, this 09th day of December, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Clayton Bulpitt, Commissioner

Anne McPhee, 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.