Docket LA96028
Order LA96-16

IN THE MATTER of an appeal by Prime Mini and Modular Homes against a decision by the Brackley Community Council, dated September 10, 1996.

BEFORE THE COMMISSION

on Tuesday, the 24th day of December, 1996.

John L. Blakney, Vice-Chair
Carl Riggs, Commissioner
Clayton Bulpitt, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Preliminary Matters

3. Decision

3. Disposition

Order

Appearances & Witnesses

1. For the Appellant

Witness:
Carmen Simmons

2. For the Community

Counsel:
Charles Keizer

Witness:
Leo MacLeod

Reasons for Order

1. Introduction

This Order and Reasons for Order pertains only to preliminary matters raised by the Appellant at the commencement of the hearing on December 19, 1996.

This is an appeal under the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8, by Prime Mini and Modular Homes (the Appellant) against a decision by the Brackley Community Council (the Community) to deny a building permit for Provincial Property Number 641563.

On October 1, 1996 the Appellant filed with the Commission a Notice of Appeal.

The Commission commenced the appeal hearing on November 21 and reconvened on December 19, 1996.

2. Preliminary Matters

At the commencement of the hearing on December 19, 1996, Carmen Simmons raised a preliminary matter related to the focus of the appeal and limitations on evidence. He requested the Commission limit the evidence and the focus of these proceedings to a letter which was signed by Leo MacLeod. The letter, which is not dated, was identified for information purposes only as Exhibit A2.

The relevant part of the content of the letter states:

The Brackley Community Council will be preparing a building permit for the above customer providing all documentation for sewage etc. is received by Council.

During the hearing, Mr. Simmons stated that he believes this letter constitutes "approval in principle" and contends that as it was not contested or appealed by either party the "approval in principle" should stand.

Mr. Simmons requests, that based on this letter, the Commission should order the Council to issue a building permit. In the event the Commission finds that it does not have the jurisdiction to issue such an order, Mr. Simmons requests the Commission provide direction as to who has the jurisdiction to order the Council to issue the building permit.

Charles Keizer legal counsel for the Brackley Community Council submits that if the Commission decides to limit the appeal to only the letter identified as Exhibit A2, and as there was no appeal filed against this letter, the Commission does not have the jurisdiction to hear this matter. Mr. Keizer argues that an appeal against this letter, which the evidence suggests was signed before September 5, 1996, is beyond the 21 day period for filing the appeal. Mr. Keizer contends that if the Commission finds in favor of Mr. Simmons' preliminary matter and limits these proceedings to Mr. MacLeod's letter (Exhibit A2) then the Commission is without jurisdiction to hear this matter and must dismiss the appeal.

3. Decision

The Commission has given consideration to the request by Mr. Simmons to limit the evidence and submission and the focus of this appeal to the letter, identified as Exhibit A2. In addition, the Commission has given consideration to the submissions made by Charles Keizer.

On this preliminary matter the Commission has determined the following:

In cases such as this, the Commission's jurisdiction to hear an appeal is limited pursuant to the provisions of Section 28 of the Planning Act. Under the appeal provisions set out in subsection 28.(1), the council must make a decision in the administration of their bylaws, and any person who is dissatisfied by this decision may appeal to the Commission within the prescribed time, stating both grounds and relief.

Section 28 of the Act states:

(1)Subject to subsections (2), (3) and (4), any 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 of the decision appeal to the Commission. (emphasis added)

In this case, we understand that the letter referred to by Mr. Simmons which was signed by Leo MacLeod and addressed to Mr. Brian Potter was signed sometime before September 5, 1996. Mr. MacLeod stated during the hearing that he believed the actual date may have been September 4, 1996. Mr. MacLeod's statement regarding the date this letter was signed was not contested by Mr. Simmons.

The Commission also understands that this letter, which Mr. Simmons argues was a decision to grant "approval in principle" for a building permit, was not appealed. Both the Appellant and the respondent agree with the fact that this letter was not appealed.

The Appellant submits that he was pleased with the decision of Council contained in the letter identified as Exhibit A2. He believed he would obtain his permit in due course. The Commission understands that it was the letter of September 10, 1996 which conveyed Council's decision to deny the permit that caused him to be dissatisfied and prompted his appeal on October 1, 1996.

The Commission also understands that Mr. Simmons wants to limit the focus of the hearing to a single ground, Exhibit A2 and limit the scope of the evidence, especially evidence related to occurrences after September 5, 1996.

It is the view of the Commission that Mr. Simmons is free to raise any point that is relevant to his case. Also, he is free to limit the evidence which he wants to present to support his case. If he wishes to put forward Exhibit A2 as his only ground for appeal, then that is his choice. However, the Commission is not prepared to limit Council's response unless the evidence is determined to be irrelevant. Therefore, the Council may present whatever relevant evidence it finds necessary to support its case.

In the result, Mr. Simmons motion to limit the scope of the hearing to Exhibit A2 is declined.

The Commission will proceed to hear this matter on a date to be fixed .

In regards to the matter of providing the Appellant with direction or other options open to him other than proceeding with the appeal, the Commission finds the following: if Mr. Simmons finds that he is unhappy with the decision to proceed on the basis outlined above, he is free to withdraw his appeal. If he does decide to withdraw he can raise the matter of his entitlement to a permit in the courts.

3. Disposition

The motion to have the Commission restrict the evidence to matters related to Exhibit A2 - a letter signed by Leo MacLeod is dismissed.

The Commission will proceed to hear this appeal on a date to be fixed.

IN THE MATTER of an appeal by Prime Mini and Modular Homes against a decision by the Brackley Community Council, dated September 10, 1996.

Order

WHEREAS Prime Mini and Modular Homes has appealed a decision of the Brackley Community Council, dated September 30, 1996;

AND WHEREAS the Commission heard this appeal at a public hearing conducted in Charlottetown on November 21 and December 19, 1996 after due public notice;

AND WHEREAS the Appellant raised a preliminary matter requesting the evidence and focus of this appeal be limited to a letter identified as Exhibit A2;

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 motion to have the Commission restrict the evidence to matters related to Exhibit A2 - a letter signed by Leo MacLeod is dismissed.

2. The Commission will proceed to hear this appeal on a date to be fixed.

DATED at Charlottetown, Prince Edward Island, this 24th day of December, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Carl Riggs, Commissioner

Clayton Bulpitt, 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.