Docket LA97014
IN THE MATTER of an appeal by Gary L. Paynter against a decision made by the Minister of Community Affairs and Attorney General dated June 24, 1997.
Order LA98-02BEFORE THE COMMISSION
on Tuesday, the 24th day of February, 1998.
Ginger Breedon, Vice-Chair
Debbie MacLellan, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses Written submissions were filed by:1. For Gary L. Paynter (the Appellant)
Gary L. Paynter
2. For the Minister of Community Affairs and Attorney General (the Respondent)
Counsel:
Cyndria Wedge
Judith M. Haldemann3. For the City of Charlottetown
Counsel:
David W. Hooley, Q.C.
Reasons for Order
1. Introduction This Order and Reasons for Order pertains to preliminary matters only.This is an appeal under the Planning Act, R.S.P.E.I. 1988, Cap. 8 by Gary L. Paynter (the Appellant). By Notice of Appeal dated July 2, 1997 the Appellant has appealed a decision made by the Minister of Community Affairs and Attorney General (the Minister) to approve an amendment to the Sherwood Zoning and Development Bylaw for the former Community of Sherwood (now part of the City of Charlottetown). The amendment was to rezone 30 Hemlock Court from Residential Two-Family (R2) to Commercial Retail (C1).
In a letter to the Commission dated July 14, 1997 Judith M. Haldemann, on behalf of the Minister, raised a preliminary matter arguing that Mr. Paynter's appeal does not fall within the matters which may be appealed under section 28 of the Planning Act.
In a subsequent letter to the Commission dated July 30, 1997, Cyndria L. Wedge notified the Commission that she now represents the Minister and further argues that the Minister's decision to approve the bylaw amendment is not subject to appeal under section 28 of the Planning Act.
A hearing on this appeal was held in abeyance while the Commission held hearings and rendered decisions on appeals filed by the Appellant on separate but related decisions made by the City of Charlottetown.
By letter to all parties dated December 15, 1997, the Commission advised that it would proceed with a hearing on this preliminary matter. The hearing was conducted by way of written submissions. The Commission received written submissions on January 16, 1998 from David Hooley, Q.C. on behalf of the City, Cyndria L. Wedge on behalf of the Minister and from Gary L. Paynter. Sonya Corrigan, the property owner made no submissions. Although, the Commission provided an opportunity for final written rebuttals from the parties, no rebuttals were submitted by any party.
2. DiscussionThe Minister
The arguments for the Minister may be summarized as follows:
The Minister's position is that section 28 of the Planning Act only allows appeals from a decision of a council or the Minister in respect of the administration of regulations or bylaws.
The Minister submits that section 17 of the Planning Act states that bylaws are made by council and are subject to the approval of the Minister. Although this approval is discretionary, the approval of the Minister is more a formality. The Minister contends that section 19 of the Planning Act prescribes the procedure to make a bylaw and it is formally declared passed only after being signed by the mayor or chairman, the administrator and the Minister. The Minister is not involved in the actual adoption of the bylaw – this is the responsibility of the municipal council.
The Minister submits that the decision by the Minister to approve the bylaw was made pursuant to section 17 of the Planning Act and was not made in respect to the administration of the regulations or bylaws, therefore the Commission has no jurisdiction to hear this appeal. The Minister adds that the administration of the bylaws and the official plan for Sherwood is the responsibility of the municipal council, not the Minister.
The Minister requests this appeal be dismissed.
The Appellant
The arguments for the Appellant may be summarized as follows:
The Appellant submits that any bylaw passed by a Municipal Council does not have any force and effect until the Minister responsible for administration of the Planning Act gives his approval. The Appellant contends municipal official plans, rezoning and bylaw amendments are the final responsibility of the Minister and, in most cases, his careful deliberation as to whether the amendments are consistent with the intent of the Planning Act and other provincial planning policy is required.
The Appellant also submits that Ministerial approval is not discretionary or a mere formality and that any decision of the Minister made in the administration of the Planning Act could be appealed under section 28 of the Planning Act.
The Appellant contends that the Commission does have the jurisdiction to hear this appeal.
The City of Charlottetown
The arguments for the City may be summarized as follows:
It is the City's position that the Minister's role is to confirm that the municipal process was carried out correctly in accordance with sections 18 and 19 of the Planning Act. The provincial government has delegated the substantive decision making power to Council and the role of the Minister is simply to ensure due process was followed in accordance with the law.
The City believes that it is doubtful the merits of the bylaw can be appealed under section 28 as opposed to the process.
The City argues that the role the Minister plays under the Municipal Planning Bylaw section is, in fact, part and parcel integral to the "decision of the council" itself. A bylaw is not effective law unless and until the Minister verifies the procedural aspect. Once that is completed, the decision of the Council is complete. The decision of Council may be appealed under section 28 of the Planning Act.
Further to this matter, the City argues that the Appellant's concerns have already been heard by the Commission and a decision has been rendered; therefore, this appeal with respect to the already defunct "rezoning" is moot in any event.
The City's position is that this appeal should not proceed.
3. Findings
The Commission has considered the submissions of the parties and has decided that it does not have the jurisdiction to hear this appeal. The reasons for this decision are as follows:
The Commission is a creature of statute and has only the jurisdiction granted to it by the legislation. As stated in the recent decision rendered by the Prince Edward Island Supreme Court – Appeal Division, "the Commission does not have unfettered discretion or unbridled power to deal and decide appeals as it likes". On appeals involving land use matters, such as the present case, the Commission must make its decision within existing laws - in this case, the Planning Act.
In determining whether the Commission has the jurisdiction to hear this appeal, 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 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.
Therefore, in accordance with the provisions of the Planning Act, the Commission's jurisdiction is restricted to a decision made "by a council or the Minister in respect of the administration of the regulations or bylaws made pursuant to the powers conferred by this Act".
In this case, the Minister gave his approval on June 24, 1997 to an amendment to the Sherwood Zoning and Development Bylaw involving a rezoning of 30 Hemlock Court, from Two-Family Residential (R2) to Retail Commercial (C1). The Minister's authority for approving municipal bylaws is set out in section 17 of the Planning Act, which states:
Section 17The bylaws shall be subject to the approval of the Minister and shall be effective on the date of approval by the Minister.
As the Minister's decision to approve the amendment to the bylaw was made under section 17 of the Planning Act, it is therefore not a decision by the Minister in the administration of the regulations or bylaws.
The Commission finds that this decision is not subject to appeal pursuant to the provisions of section 28 of the Planning Act.
4. Disposition
For these reasons the Commission finds that it does not have the jurisdiction to hear this appeal.
DATED at Charlottetown, Prince Edward Island, this 24th day of February, 1998. BY THE COMMISSION: Ginger Breedon, Vice-Chair
Order
WHEREAS Gary L. Paynter (the Appellant) has appealed a decision by the Minister of Community Affairs and Attorney General, dated June 24, 1997; AND WHEREAS the Commission held a hearing on this matter by way of written submissions;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 THAT1. The Commission does not have the jurisdiction to hear this appeal.
Debbie MacLellan, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
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:
(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.