Docket LA96018
Order LA97-15
BEFORE THE COMMISSION
on Friday, the 28th day of November, 1997.
Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses
By way of agreement the parties filed written submissions pertaining to this appeal.
1. For The Town of Montague
Counsel:
Alfred K. Fraser, Q.C.
2. For Appellants
Counsel:
Kenneth A. Clark
3. For the Developer
Submission by:
Michael Kohler
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 Keir Clark and Marion Clark (the Appellants) against a decision whereby the Montague Town Council (the Council) approved a development permit for Atlantic Resorts Ltd. (the Developer) on June 10, 1996.
On June 14, 1996 the Appellants filed a Notice of Appeal with the Commission.
On June 21, 1996 the Town of Montague issued a Building Permit to Atlantic Resorts Ltd.
The Commission commenced the appeal proceedings on August 2, 1996. Prior to the completion of the hearing, the parties consented to holding this matter in abeyance until a subsequent appeal was decided by the Commission.
On November 25, 1997 the parties met with Commission staff and the Commission's legal counsel and it was agreed by all parties that the only outstanding matter of this appeal pertains to the status of the Building Permit issued by the Town of Montague on June 21, 1996.
2. Discussion
In a letter to the Commission dated October 17, 1997 Mr. Clark submits that the building permit should be quashed on the grounds that it is defective on its face, as it is identical in defect as the building permit issued to the Developer in the appeal which was decided by Order LA97-08.
In a letter to the Commission dated November 25, 1997, Michael Kohler, on behalf of Atlantic Resorts Ltd. submits: "… if the Commission chooses we would agree to the appeal being quashed, withdrawn or torn up as you decide. My client does not wish to proceed with the work shown on the application."
In a letter to the Commission dated November 27, 1997 the Town takes the position … "that the permit referred to was subsequently withdrawn on instructions from Mr. Yap to the development officer, Leonard Munroe. …Because the Town considers this permit to be null and void, we do not see why we should consent to a quashing of the appeal based on a permit that, as far as the Town is concerned, does not exist"…
3. Findings
The Commission has considered the submissions of the parties and has reviewed the building permit issued by the Town on June 21, 1996 – Serial No. M13.
In considering this matter, the Commission notes on Part 5, subsection 1.(a) of the Bylaw:
Subsection 1.(a)
No development shall be undertaken within the corporate limits of the Town of Montague unless a development permit granted by the Development Officer has first been obtained. (emphasis added)
…
Upon review of the contents of the Building Permit, the Commission finds that the permit is issued under the authority of the Town of Montague Planning Regulations. The Commission concludes, however, that these regulations no longer exist and have been replaced by the Bylaw. In addition, we find that the permit was approved: subject to the provisions of all regulations under Planning By-Law No. 31, governing and affecting such erection or alteration… . However, Planning By-Law No. 31 no longer exists.
As the Commission stated in Order LA97-08, the Commission would likely view the issuance of a document entitled "Building Permit" instead of "Development Permit" as a minor technical flaw that could be corrected if this were the only defect in the document. However, the Commission views the citing of completely erroneous authority on the face of the document as a more substantial problem. The authority on which the permit is based no longer exists. For this reason the Commission is of the view that the permit is invalid.
The Commission hereby quashes permit – Serial No. M13 which was issued by the Town on June 21, 1996.
4. Disposition
An Order allowing the appeal and quashing Building Permit - Serial No. M13 will therefore be issued.
IN THE MATTER of an Appeal by Keir Clark and Marion Clark against a decision by the Town of Montague dated June 10, 1996.
Order
WHEREAS
Keir Clark and Marion Clark have filed an appeal against a decision by the Town of Montague to issue a building permit to Atlantic Resorts Ltd. on June 21, 1996;AND WHEREAS
the Commission has received submissions from all parties on this matter;AND WHEREAS
the Commission has issued its findings in this 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 appeal is allowed and Building Permit - Serial No. M13 is hereby quashed.
DATED
at Charlottetown, Prince Edward Island, this 28th day of November, 1997.BY THE COMMISSION:
Wayne D. Cheverie, Q.C., ChairGinger Breedon, Vice-Chair
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.