Order LA97-12 - LA97016 - Planning Appeal - Ian Ford v. Minister of Community Affairs and Attorney General (Oct 17, 1997)

Docket LA97016
Order LA97-12

IN THE MATTER of an appeal by Ian Ford against a decision by the Minister of Community Affairs and Attorney General, dated June 19, 1997.

BEFORE THE COMMISSION

on Friday, the 17th day of October, 1997.

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Carl Riggs, Commissioner
Debbie MacLellan, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion and Findings

3. Disposition

Order

Appearances & Witnesses

Written submissions were filed by:

1. For The Appellant (Ian Ford)

Counsel:
John L. MacDougall, Q.C.

2. For the Respondent (the Department of Community Affairs and Attorney General)

Counsel:
Cyndria L. Wedge

3.    For the Developer (Lank Farms Inc.)

Counsel:
Kevin Kiley

Reasons for Order

1. Introduction

This Order and Reasons for Order pertains to preliminary matters only.

This is an appeal under the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8 by Ian Ford (the Appellant).

According to the Notice of Appeal filed with the Island Regulatory and Appeals Commission (the Commission) on July 9, 1997 and as amended on July 10, 1997 and September 15, 1997, the Appellant has appealed a decision by the Minister of Community Affairs and Attorney General (the Minister) to issue a building permit on June 19, 1997 to Lank Farms Inc. (the Developer) and a decision by the Minister of Fisheries and Environment to grant approval to the Developer to construct a swine barn and manure storage tank.

The Commission held a meeting with the parties on August 8, 1997 to discuss preliminary matters. At this meeting the parties agreed to file written submissions on preliminary matters. Submissions were received by all parties.

2. Discussion and Findings

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

ISSUE ONE: ENVIRONMENTAL PROTECTION ACT

The Appellant

In a submission to the Commission dated September 15, 1997, the Appellant raises the following grounds for appeal:

1. The Honourable Kevin J. MacAdam, Minister of Fisheries and Environment, exceeded his jurisdiction when, by letter dated June 16, 1997, he granted approval to Lank Farms to proceed with their proposed construction of a large swine barn and manure storage tank, particulars of the alleged excess of jurisdiction being:

(a) Failure to require Lank Farms to carry out an environmental impact assessment and submit an environmental impact statement, pursuant to section 9(2)(b) of the Environmental Protection Act;

(b) Failure to notify the residents of Ebenezer of Lank Farms' proposal and provide an opportunity for comment, pursuant to section 9(2)(c) of the Environmental Protection Act;

2.     The Honourable P. Mitchell Murphy, Minister of Community Affairs and Attorney General, exceeded his jurisdiction when he issued the Building Permit, dated June 19, 1997, to Lank Farms, particulars of the alleged excess of jurisdiction being:

a.     Failure to protect the public interest, as required by section 28(b of the Planning Act)[sic], by failing to require Lank Farms to carry out an environmental impact assessment and to submit an environmental impact statement;

b.     In the alternative to (a) above, failure to protect the public interest, as required by section 28(b) of the Planning Act)[sic], by failing to remit Lank Farms' application for a building permit back to the Minister of Fisheries and Environment for an environmental impact assessment.

c.    Failure to protect the public interest, as required by section 28(b) of the Planning Act[sic], by failing to inquire into whether the residents of Ebenezer would suffer diminution in property values as a result of the construction of a "hog factory" in their community;

d.    Failure to protect the public interest, as required by section 28(b) of the Planning Act[sic], by failing to notify the residents of Ebenezer of Lank Farms' proposal and failing to provide them with an opportunity for input into the decision-making as to whether or not the building permit should be granted.

In a subsequent submission to the Commission on October 8, 1997 the Appellant presented further argument on the preliminary matters. On matters with respect to ground 2.(a) the Appellant clarifies that reference to section 28(b) of the Planning Act should be to the Environmental Protection Act.

On ground 1(a) - that the Minister of Fisheries and Environment failed to carry out an environmental impact assessment, the Appellant argues that the Commission has the authority to decide whether the Minister exercised his discretion properly because the proper exercise of this discretion was a condition precedent to the issuance of the building permit.

On ground 1(b) - that the Minister of Fisheries and Environment failed to notify the residents of Ebenezer of the Lank Farms' proposal and provide an opportunity for comment, the Appellant states that the Commission has the jurisdiction to review this decision because it was a condition precedent to the issuance of the building permit and it resulted in a condition adopted by the Minister of Community Affairs and Attorney General and included by him in the building permit.

On ground 2(a) - that the Minister of Community Affairs and Attorney General failed to protect the public interest by failing to require Lank Farms to carry out an environmental impact assessment and to submit an environmental impact statement, the Appellant argues that both section 9(1) of the Environmental Protection Act and section 23(1) of the Planning Act Regulations support the existence of such duty. The Appellant submits that the Commission has authority under section 28 of the Planning Act to decide this ground of appeal.

On ground 2(b) the Appellant argues that the Minister of Community Affairs and Attorney General had a duty to protect the public interest by remitting the application for a building permit back to the Minister of Fisheries and Environment for an environmental impact assessment. For the same reasons as presented for ground 2(a), the Appellant argues that the Commission has the authority to decide this ground of appeal.

The Appellant concludes that the Commission has the authority to decide appeal grounds 1(a) and (b) and 2(a) and (b) and that, therefore, the objections of the Respondents and Lank Farms Inc. should be dismissed.

The Appellant provides no arguments on the merits of grounds 2(c) and (d).

The Developer

In its submission to the Commission, dated September 15, 1997, the Developer takes the following position:

The Minister of Fisheries and Environment granted approval on June 16, 1997 to Lank Farms Inc. to proceed with the construction of a swine barn and manure storage tanks. The Developer submits that this decision was a decision made pursuant to the Environmental Protection Act and the Commission does not have jurisdiction to hear an appeal on this decision.

The Commission's jurisdiction is set out in section 6(a) of the Island Regulatory and Appeals Commission Act and this Act does not confer any jurisdiction or powers to the Commission to hear an appeal of the Minister of Fisheries and Environment. Furthermore, the Environmental Protection Act provides no right of appeal to the Commission.

The Developer provides no arguments on the merits of grounds 2(c) and (d).

The Minister

In its submission to the Commission, dated August 7, 1997 and September 16, 1997, the Minister takes the following position:

The Commission is a tribunal created by statute, and hence, has only such powers as are granted by statute. Although sections 28 and 37 of the Planning Act specifically create a right of appeal to the Commission, the legislative authority for the approval of an undertaking is contained in section 9 of the Environmental Protection Act. It is not made pursuant to powers conferred by the Planning Act. Hence, the Planning Act does not authorize the Commission to review decisions made pursuant to the Environmental Protection Act.

The Environmental Protection Act does not contain any provision permitting the Commission to review decisions of the Minister of Fisheries and Environment.

The Minister contends that no statutory authority exists granting the Commission jurisdiction to review the approval of an undertaking issued pursuant to section 9 of the Environmental Protection Act.

The Minister submits that if the Commission accepts Government's position that the Commission has no jurisdiction to hear an appeal under the Environmental Protection Act then the Commission has no jurisdiction to deal with issues 1(a) and (b) and 2(a) and (b) as stated in Mr. MacDougall's letter of September 15, 1997. The Minister further submits that the Appellant could have applied to the Supreme Court for judicial review of the Minister of Fisheries and Environment's decision to approve the undertaking.

The Minister provides no arguments on the merits of grounds 2(c) and (d).

The Commission's Findings

In determining whether the Commission has the jurisdiction to decide the grounds of appeal as presented in the Appellant's submission dated September 15, 1997, the Commission is bound by section 28(1) of the Planning Act which states:

s.28(1)

Subject to subsections (2), (3) and (4), any person which 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.

In deciding appeals pursuant to section 28 of the Planning Act, the Commission must make its decision within existing laws. The Commission is a creature of statute and has only the jurisdiction granted to it by the legislation. Therefore, in accordance with the provisions of the Planning Act, the Commission's jurisdiction is restricted to a decision made "in respect of the administration of the regulations or bylaws made pursuant to the powers conferred by this Act". In other words, the Commission has the jurisdiction only with respect to decisions of a council or the Minister taken under the Planning Act.

Although the Appellant argues that certain decisions by the Minister of Fisheries and Environment were conditions precedent to the issuance of a building permit granted by the Minister of Community Affairs and Attorney General, the Commission finds that it has no jurisdiction to hear an appeal from any decision made by the Minister of Fisheries and Environment on issues made under the provisions of the Environmental Protection Act.

The Commission's decision on this matter is consistent with its decision in a previous appeal in 1996, cited as: In the Matter of Appeal by Donald Clarey and Keith MacKenzie against a decision by the Minister of Provincial Affairs and Attorney General - Order LA96-03. On this matter the Commission decided that it did not have the jurisdiction to hear an appeal from any decision made pursuant to the provisions of the Environmental Protection Act.

The decision by the Minister of Fisheries and Environment to grant approval to proceed with the undertaking, was made pursuant to section 9(1) of the Environmental Protection Act and therefore the Commission is without jurisdiction to decide grounds 1(a) and (b) and 2(a) and (b) as presented in the Appellant's submission dated September 15, 1997.

As to grounds 2(c) and (d) as presented in the Appellant's submission dated September 15, 1997, the Commission finds that the Appellant's reference to section 28(b) of the Planning Act is in error as no such provision exists in the Planning Act. However, it would appear reasonable to assume, based on the phraseology used – "protect the public interest", that the Appellant is actually referring to section 28(b) of the Environmental Protection Act. The Commission therefore proceeds on this basis. For the reasons given above with respect to grounds 1(a) and (b) and 2(a) and (b), the Commission is of the opinion that it is without jurisdiction to hear grounds 2(c) and (d).

ISSUE TWO: MAJOR DEVELOPMENT

The Appellant

In the letter of appeal dated July 9, 1997, the Appellant raised several issues with respect to the proposed development and whether it was a "major development" as defined by the Planning Act. The Appellant made no further arguments on this matter.

The Developer

The Developer submits that the project is not a major development as defined pursuant to section 29 of the Planning Act. The Developer states that they rely upon the certificate by Serge J. Bernard, Chief Surveyor for the Province as set out in the Minister's submission, dated August 5, 1997.

The Minister

The Minister submits that the proposed development is an industrial use, however, it is not a major development pursuant to section 29(b) of the Planning Act. The project does not exceed 5,000 square meters. In support of this argument, the Minister submits a "Demonstration Plan" showing the proposed location of the buildings and storage facilities prepared by Serge J. Bernard, Chief Surveyor for the Province and certification from him that the proposed building would have a surface area of 2,966 square meters and the manure storage tank would have a surface area of 1,051 square meters.

The Commission's Findings

In considering the submissions by all parties on this issue, the Commission finds the proposed development is not a major development within the definition set out under section 29(b) of the Planning Act.

Section 29(b) states:

"major development" means any development involving the provision of new or additional space in any building

in relation to a building for industrial institutional or commercial (other than retail) use, in excess of 5,000 square metres,

in relation to a building for retail commercial use, in excess of 3,000 square metres;

The Commission gives considerable weight to the Minister's submission dated August 7, 1997 which included (at Tab 17) a certification from the Chief Surveyor for the Province of Prince Edward Island. In his review he states that the design plans as prepared for the Developer by Linkletter Engineering Inc. show a total surface area of 2,966 square meters. In addition, the manure storage tank would encompass a surface area of 1,051 square meters.

The Commission believes that even with the proposed revisions to the plans (from 1 manure storage tank having a diameter of 120 feet to 2 storage tanks each having a diameter of 80 feet) the proposed development would not be in excess of 5,000 square meters.

In the result, this ground shall be struck from the appeal.

ISSUE THREE: WHO IS THE APPELLANT

The Appellant

In a submission to the Commission dated July 9, 1997, Catherine M. Parkman states "We represent Mr. Ian Ford who wishes to appeal …". In a subsequent submission to the Commission, dated September 18, 1997, Mr. MacDougall presents a list of the people "…I represent who live in the Ebenezer area, oppose Lank Farms' proposed "hog factory" and support Mr. Ian Ford's appeal. No additional arguments are presented.

The Developer

The Developer submits that no additional appellants may be added to the appeal as only Ian Ford filed an appeal within the statutory time period as set out pursuant to section 28(1) of the Planning Act.

The Minister

The Minister makes no submission on this issue.

The Commission's Findings

As to the issue of who is the appellant in this matter, the Commission has reviewed the original letter of appeal, dated July 9, 1997 and signed by Catherine M. Parkman. At paragraph one Ms. Parkman states that "We represent Mr. Ian Ford …". Although in his letter dated September 18, 1997 Mr. MacDougall submits a list of people he represents, the Commission finds that only Mr. Ford has appealed a decision within the prescribed 21 day appeal period pursuant to section 28(1) of the Planning Act.

The Commission will not allow additional persons to be added as appellants.

However, the parties are advised that the hearing on the substantive matters of this appeal is open to the public and the public will have an opportunity to be heard.

ISSUE FOUR: THE PETITION

The Appellant

With the letter of appeal dated July 9, 1997 Mr. MacDougall submitted a petition signed by local area residents. The Appellant presented no arguments as to the status of the petition.

The Developer

The developer contends that the petition filed with the Commission with the original letter of appeal dated July 9, 1997 is not relevant to the appeal and must be struck from the record.

The Minister

The Minister makes no submission on this issue.

The Commission's Findings

As to the matter of whether the petition as presented with the letter of appeal, dated July 9, 1997 is admissible, the Commission finds that it will accept the petition for what it is worth.

During the hearing the parties may argue the weight which should be attached to this exhibit.

3. Disposition

An Order on preliminary matters will therefore be issued.

IN THE MATTER of an appeal by Ian Ford against a decision by the Minister of Community Affairs and Attorney General, dated June 19, 1997.

Order

WHEREAS Ian Ford has appealed a decision by the Minister of Community Affairs and Attorney General, dated June 19, 1997 to issue a building permit to Lank Farms to erect a hog barn and manure storage facility in the Community of Ebenezer;

AND WHEREAS Commission heard the appeal on preliminary matters by way of written submissions;

AND WHEREAS the Commission has issued its findings on these preliminary matters 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 not have jurisdiction to decide matters set out in the grounds for appeal - grounds 1(a) & (b) and 2(a), (b), (c) and (d) as presented in a submission from the Appellant dated September 15, 1997;

2.    The proposed development is not a major development as defined pursuant to section 29(b) of the Planning Act;

3.    Mr. Ian Ford is the only appellant in this matter; and

4.    The petition presented with the letter from Ms. Catherine Parkman, dated July 9, 1997 shall be admissible and its weight determined after the hearing.

DATED at Charlottetown, Prince Edward Island, this 17th day of October, 1997.

BY THE COMMISSION:

Wayne D. Cheverie, Q,C., Chair

Ginger Breedon, Vice-Chair

Carl Riggs, Commissioner

Debbie MacLellan, 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.