Docket LA96013
Order LA97-03IN THE MATTER of an appeal by William V. Doucette against a decision by the Minister of Provincial Affairs and Attorney General, dated April 4, 1996.
BEFORE THE COMMISSION
on Thursday, the 13th day of March, 1997.
John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Preliminary Matters
3. Decision on Preliminary Matters
4. Disposition
Order
Appearances & Witnesses
1. For Appellant
Witness:
William V. DoucetteCounsel:
John McMillan filed a written submission on behalf of the Appellant on December 3, 1996.2. For Department
Witnesses:
Don Walters
Garth CarragherCounsel:
Cyndria Wedge
Reasons for Order
1. Introduction
This Order and Reasons for Order pertains only to preliminary matters raised by representatives of the Department of Provincial Affairs and Attorney General (the Department) at the commencement of the hearing held on June 25, 1996.
This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 by William V. Doucette (the Appellant). The Appellant is appealing a decision whereby the Minister of Provincial Affairs and Attorney General (the Minister) denied a building permit to develop a single family dwelling on Provincial Property Number 235705 located in the Community of Rusticoville.
On March 22, 1996 the Appellant completed an application for a building permit and submitted it to the Department for approval (Exhibit D1).
On April 4, 1996 Garth Carragher, on behalf of the Minister, notified the Appellant that the application was denied (Exhibit A1).
The Appellant filed a Notice of Appeal with the Island Regulatory and Appeals Commission (the Commission) on April 17, 1996.
The Commission commenced the appeal hearing on June 25, 1996.
The Commission received further submissions from Don Walters on behalf of the Department on August 23 and September 5, 1996 and a submission from John McMillan, legal Counsel for the Appellant, on December 3, 1996.
Prior to the Commission deciding this matter, Commissioner Emmett Kelly excused himself from the panel.
2. Preliminary Matters
The Department
The Department's position may be summarized as follows:
At the commencement of the hearing the Department raised an objection with respect to the Commission hearing this appeal.
The Department challenges the Commission's jurisdiction to hear this appeal under subsection 28.(5) of the Planning Act and subsection 12.(2) and Section 4 of the Roads Act Highway Access Regulations.
The Department argues that the Appellant did not provide adequate grounds in the notice of appeal as required under subsection 28.(5) of the Act. The Department contends that the grounds contained in the Appellant's notice of appeal must refer to the issue of safe stopping distance. In this case, the Department submits that the Appellant's grounds do not refer specifically to safe stopping distance and therefore the appeal is not properly before the Commission.
The Department also submits that pursuant to the provisions of subsection 12.(2) of the Roads Act Highway Access Regulations there is no right of appeal where the Minister makes a decision pursuant to Section 4 of the Regulations. The right of appeal is limited to a question of an error in the determination of available safe stopping sight distance. The Department contends that, in this case, the Minister made a decision pursuant to the provisions of Section 4 of the Roads Act Highway Access Regulations to deny the appeal and the Appellant has not provided any grounds to support that the Minister erred in the determination of available safe stopping distance.
The Department also made written submissions on August 23, 1996 and September 4, 1996 in support of its position.
For the reasons stated, the Department contends that the Commission has no jurisdiction to hear the matter.
The Appellant
The Appellant's position may be summarized as follows:
The Appellant submits that his grounds for appeal are not against an error in the determination of available safe stopping distance but are based on the premise that other permits have been issued to adjacent properties since 1966.
The Appellant states that he conducted his own profile of the property and agrees with the measurements as taken by the Department. The Appellant argues that after spending a considerable amount of money on taxes, this property will be "valueless" if he can't get access and develop the property.
In a letter received by the Commission on December 3, 1996, John McMillan, legal counsel for the Appellant, states that he does not agree with the Department's position. Mr. McMillan contends that because Mr. Doucette's application was made pursuant to the Planning Act and because the Minister rejected the application pursuant to that Act, the Commission does have the jurisdiction to hear this matter pursuant to subsection 28.(1) of the Act. In addition, Mr. McMillan submits that because Mr. Doucette did not make an application for an entrance way permit pursuant to Section 7 of the Roads Act Highway Access Regulations, subsection 12.(2) of the Roads Act Highway Access Regulations does not apply. Mr. McMillan states even if subsection 12.(2) of the Roads Act Highway Access Regulations does apply, the Regulation does not prohibit an appeal but merely limits the grounds of the appeal.
Mr. McMillan requests that the Commission dismiss the Department's preliminary motion and schedule the hearing as soon as possible.
3. Decision on Preliminary Matters
Upon review of the Roads Act Highway Access Regulations and the Planning Act the Commission finds there are two separate and distinct rights of appeal established under each. One right of appeal arises from decisions of the Minister of Transportation and Public Works when a person makes an application for an entrance way permit. The other arises when one is dissatisfied with a decision of the Minister of Provincial Affairs and Attorney General in the administration of the Planning Act Regulations, including decisions regarding building permits, which is the situation in this case.
Under the Roads Act Highway Access Regulations Section 3 sets out the requirement that an entrance way permit must first be obtained from the Minister of Transportation and Public Works before the construction or change of use of an entrance way opening onto an arterial or seasonal highway.
s.3 No person shall construct or cause a change of use of an entrance way opening onto an arterial or a seasonal highway without first having obtained an entrance way permit from the Minister.
Section 7 sets out the requirements for making an application for an entrance way permit and the documentation to be included in such an application.
s.7. (1) An application for an entranceway permit shall be in a form prescribed by the Minister, accompanied by
(a) a record of re-zoning or change of use approval, if applicable;
(b) an application fee in the amount prescribed in Schedule "H";
(c) a property map, drawn to appropriate scale, showing the entire parcel of land, the intended location of the subject entrance way, the location of any existing entrance way and the location of existing and proposed buildings;
(d) a copy of the deed of the property; and
(e) in case of an application for expansion of a commercial operation, a detailed floor plan and site plan showing the existing and proposed use.
…
The fee provisions for processing an entrance way permit application are set out under subsection 9.(1) which states:
ss.9.(1) The fees of an entrance way permit for a new entrance way shall be not less that the amount prescribed in Schedule "H".
Section 12 prescribes the appeal provisions, which state:
ss.12.(1) Where the Minister has discretion to issue an entrance way permit pursuant to these regulations, a decision of the Minister may be appealed to the Island Regulatory and Appeals Commission, by the applicant.
(2) For greater certainty, where the Minister makes a decision pursuant to section 4, there is no appeal to the Island Regulatory and Appeals Commission on any grounds other than an error in the determination of available safe stopping sight distance.
On the face of the record, the Commission can find no reference to the Appellant making application for an entrance way permit pursuant to the above requirements nor filing a notice of appeal against the decision of the Minister of Transportation and Public Works pursuant to Section 12.
The record supports that the Appellant made application for a building permit (Exhibit D1) pursuant to the provisions of Section 12 of the Planning Act Regulations, which states:
s.12 Subject to subsection 12.1 no person shall without first obtaining a building permit therefor issued by the Minister
(a) commence the construction of any building or structure;
(b) change the location of any building or structure;
(c) move or relocate any building or structure, either by moving any building or structure from a lot to another lot, changing the location of a building or structure on a lot; or
(d) make any major structural alterations to or change the interior or exterior dimensions of any building or structure.
The record also supports that on April 4, 1996 Garth Carragher, on behalf of the Department, notified the Appellant by letter that the building permit was denied. The letter from the Department states the reason for denial is "… there is no point along the entire frontage of Parcel #235705 that can satisfy the minimum sight distance requirements as specified in Schedule G of the Roads Act Highway Access Regulations" (Exhibit A1).
On April 17, 1996 Mr. Doucette filed a notice of appeal with the Commission (Exhibit A2) against the decision of the Minister to deny the issuance of a building permit and not an entrance way permit. According to the letter of denial, inability to establish a safe stopping distance for an entranceway was the reason for this decision. It is important to point out that this is a reason for a decision and not a decision.
This appeal was filed pursuant to subsection 28.(1) of the Planning Act which states:
ss.28.(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)
Subsection 28.(5) of the Act requires that a notice of appeal contain both grounds for appeal and relief sought.
ss.28.(5) A notice of appeal to the Commission under subsection (1) shall be in writing and shall state the grounds for the appeal and the relief sought.
On the notice of appeal, Mr. Doucette states that the grounds for appeal are: "This property was purchased in 1966 and building permits were issued to adjacent properties since that date".
The Department contends that because the "building proposal" was denied as it failed to meet minimum sight distance standards, the Appellant's grounds for appeal are not valid (Exhibit A1). The Department states that under subsection 12.(2) and Section 4 of the Roads Act Highway Access Regulations the grounds for appeal are limited only to an error on the determination of available safe stopping sight distance. The Department contends that the Appellant has not stated grounds on the basis of an error and therefore there is no right of appeal.
In its submission to the Commission dated August 23, 1996 the Department states:
In Section 28.(1) of the Planning Act the right of appeal is given to any person dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to this Act.
Note: This authority does not apply to the regulations enforced under the Roads Act Highway Access Regulations and On-Site Sewage Disposal Regulations.
It is my understanding of the Act that if a person wants to appeal regulations enforced under the Roads Act Highway Access Regulations and On-Site Sewage Disposal that the authority for appeal would be in those Acts.
The Commission would agree with the Department's position if the Appellant had made application under the Roads Act Highway Access Regulations for an entrance way permit and the Minister had reached a decision to deny an application for an entranceway permit. In that case, the appeal provisions under Section 12 would apply. However, in this case, failure to meet the provisions under Schedule G of these regulations was the reason given for arriving at the decision to deny a building permit application made under the Planning Act Regulations, the decision that gives rise to this appeal under Section 28 of the Planning Act.
In this case, there is no documentation on record to support that the Appellant made application under the Roads Act Highway Access Regulations for an entrance way permit - although one may be required. The evidence supports that the only application made by the Appellant was to obtain a building permit in accordance with the Planning Act Regulations (Exhibit D1). Also, the record shows that the Department denied the application for a building permit and it is this decision to deny that gives rise to this appeal pursuant to Section 28 of the Planning Act. Consequently, the Commission finds that based on the information before it this appeal is an appeal pursuant to Section 28 of the Planning Act and that the appeal provisions under Section 12 of the Roads Act Highway Access Regulations have no relevance to this case.
The Commission finds that the Appellant has properly exercised his right of appeal by serving a notice of appeal on the Commission within 21 days, stating both grounds for the appeal and the relief sought.
In the result, the Commission finds that it has the jurisdiction to hear this matter.
The Commission will proceed to hear this matter on a date to be set.
4. Disposition
For the reasons stated, the Department's preliminary motion for the Commission to dismiss the appeal is denied. The Commission finds that it does have the jurisdiction to hear this appeal and will proceed to hear the appeal on a date to be fixed.
Order
WHEREAS William V. Doucette, the Appellant has appealed a decision by the Minister of Provincial Affairs and Attorney General dated April 4, 1996;
AND WHEREAS at the commencement of the hearing the Minister has raised a preliminary issue stating the Commission does not have the jurisdiction to hear this appeal;
AND WHEREAS the Commission heard submissions pertaining to the preliminary issue at a public hearing conducted in Charlottetown on June 25, 1996 after due public notice;
AND WHEREAS the Commission received further submissions on behalf of the Department on August 23 and September 5, 1996 and on behalf of the Appellant on December 3, 1996;
AND WHEREAS the Commission has issued its findings on this preliminary issue 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 the jurisdiction to hear this appeal and will proceed to hear the appeal on a date to be fixed.
DATED at Charlottetown, Prince Edward Island, this 13th day of March, 1997.
BY THE COMMISSION:
John L. Blakney, Vice-Chair
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.
