Docket LA97004
Order LA97-05IN THE MATTER of an Appeal by Carmen Simmons against a decision by the Brackley Community Council dated February 19, 1997.
BEFORE THE COMMISSION
on Friday, the 2nd day of May, 1997.
John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
Emmett Kelly, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses
1. For the Appellant
Witness:
Carmen Simmons2. For The Community of Brackley
Counsel:
Charles Keizer
Reasons for Order
1. Introduction
This Order and Reasons for Order pertains only to preliminary matters raised by the Respondent - the Community of Brackley at the commencement of the hearing on April 7, 1997.
This is an appeal under the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8, by Carmen Simmons (the Appellant) against a decision by the Brackley Community Council (the Council) to deny subdivision approval for part of Provincial Property Number 846642 located at Brackley.
The Appellant filed a Notice of Appeal with the Commission on March 5, 1997.
The Commission commenced the appeal hearing on April 7, 1997.
2. Discussion
At the commencement of the hearing on April 7, 1997 Charles Keizer, on behalf of the Community Council, raised a preliminary matter that questioned the jurisdiction of the Commission to hear this appeal.
From the Exhibits submitted on this matter, the Commission understands that the Appellant completed a subdivision application on January 7, 1997 (Exhibit CC2) and submitted it to the Community for approval.
In response to this application, we also understand Leo MacLeod, the Community Administrator, advised Mr. Simmons by letter (Exhibit A2) dated February 19, 1997 that:
…
Council has no record on file showing the parcel of land, indicated in your documents, has been subdivided for conveyance to you by Mr. and Mrs. Clark.
When this prior subdivision requirement has been approved for Mr. and Mrs. Clark, Council will then investigate your request.
The Commission understands that the Appellant is appealing matters which relate to the contents of this letter.
The position taken by the Community is that the contents of this letter do not constitute a decision by Council which may be appealed to the Commission pursuant to the provisions of Section 28 of the Act. The Community contends that there was no decision by Council in the administration of its Bylaws. The Community believes that the letter merely instructs Mr. Simmons that additional information is required before processing of his subdivision application can be completed and before Council can make a decision on the matter.
As stated in the Notice of Appeal (Exhibit A3), the Appellant takes the position that the contents of this letter (Exhibit A2) constitutes a decision of Council and that the decision is to deny his application to subdivide the property in question.
The Appellant submits that this is a decision which may be appealed under Section 28 of the Act.
3. Findings
Subsection 28.(1) of the Act sets out the right of appeal for decisions made by municipal councils in the administration of planning bylaws:
Section 28.(1) states:
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.
On appeals the basic conditions that need to be present are: first, a decision of council in the administration of its bylaw and second, a dissatisfied person to file a notice of appeal against a decision of council.
In this case, Mr. Simmons is the dissatisfied person who has filed a Notice of Appeal. The issue being contested and the initial question before the Commission is whether or not the Brackley Community Council made a decision in the administration of its Zoning and Subdivision Bylaws (1988).
The Commission understands from the minutes of the Community Council meeting dated January 15, 1997 (Exhibit CC5), that the Council was unable to proceed to process Mr. Simmons' application for subdivision until it was satisfied that certain steps had been taken and approvals in place relevant to the subject application for subdivision.
…
Sheila explained in detail why council was unable to proceed with Carmen's request until a subdivision was first obtained by Merrill Clark for the land sold to Carmen…
This was conveyed to Mr. Simmons by letter from Leo MacLeod, dated February 19, 1997 (Exhibit A2).
The question the Commission must answer in regards to this preliminary issue is: Does Council's requirement for additional information to ensure the application is complete, constitute a decision of Council of the nature contemplated to be appealed under Section 28 of the Act?
In the Commission's opinion, there is no question that the Council on January 15, 1997 was in the process of administering its subdivision bylaw when reviewing Mr. Simmons' application - applying the general and specific subdivision bylaw provisions such as application information requirements, lot size standards, etc.
However, the Commission can find no specific bylaw provision that was being administered by the Council when it made its decision on January 15, 1997 to require additional information. It is the Commission's opinion that what was conveyed to Mr. Simmons in the letter dated February 19, 1997, was a requirement that Council be assured that Mr. and Mrs. Clark's subdivision was approved and conveyed before it proceeded to process his application.
Upon review of the Bylaws, there appears to be no specific provision that would guide the Council as to what it should do when information is absent but needed before it continues to review a subdivision application. Under Part VII, Section 5 of the Bylaws the Council has 60 days before it is required to advise the applicant of its decision on the application.
Part VII, Section 5 (page 14 of the Bylaws) states:
The Administrator, on behalf of Council, shall, within 60 days, advise the applicant in writing that the subdivision has been approved in principle, approved in principle with certain specific conditions, or that the subdivision cannot be approved in principle, and shall state the reasons for Council's decision.
In the view of the Commission, despite the fact that the Council stopped its review, Section 5 requires the Council to reach a decision within the 60 day period. But according to the record, the Appellant did not allow the 60 days to lapse before he appealed which prevented Council from making a decision within the time period. It seems to the Commission that all the Council has done is request certain steps be taken or confirm that certain things are in place before it makes a decision on the subject application within the 60 day period.
There has been no decision to deny the application, or no decision on whether or not Mr. Simmons' application fails any of the provisions of the bylaw. Council is merely requiring that certain information, which includes previous approvals, be in place before it can make a decision regarding this application.
According to the record, no effort was made to satisfy the requirement of Council, either by the Council, its Administrator or the Applicant. In the Commission's opinion, if such information were provided to satisfy the requirement and Council subsequently made a decision not to proceed based on the information filed in response to the letter of February 19, 1997 or Council decided to deny Mr. Simmons' subdivision application because of the problem with the previous subdivision (the Clark subdivision), then a person could appeal those decisions under Section 28.
If the Commission found that a requirement of Council, such as that set out in the letter of February 19, 1997, was a decision of the nature contemplated to be appealed, the potential result is that any dissatisfied person could appeal every minor requirement of Council in the application review process. The Commission believes this conclusion would lead to an absurd result and an abuse of the appeal process.
Based on the foregoing, the Commission finds that the subject Notice of Appeal is against a requirement of Council and not a decision of Council and consequently there is no appeal under Section 28 of the Act. Therefore the Commission has no jurisdiction to hear this matter.
4. Disposition
On the preliminary matter the Commission finds that it does not have the jurisdiction to hear this appeal. For the reasons given an Order will be issued dismissing the appeal.
Order
WHEREAS Carmen Simmons (the Appellant) has appealed a decision by the Brackley Community Council dated February 19, 1997;
AND WHEREAS at the commencement of the hearing the solicitor for the Community Council 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 April 7, 1997 after due public notice;
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 Commission does not have the jurisdiction to hear this appeal and therefore the appeal is hereby dismissed.
DATED at Charlottetown, Prince Edward Island, this 2nd day of May, 1997.
BY THE COMMISSION:
John L. Blakney, Vice Chair
Anne McPhee, Commissioner
Emmett Kelly, 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.