Order LA98-15 - LA98012 - Planning Appeal - Janet M. Green v. Minister of Community Services & Attorney General (Nov. 24/98)

Docket LA98012
Order LA98-15

IN THE MATTER of an appeal by Janet M. Green against a decision of the Minister of Community Services and Attorney General dated September 14, 1998.

BEFORE THE COMMISSION
on Tuesday, the 24th day of November, 1998.

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Wes Rose, Commissioner
Arthur Hudson, Commissioner

Order

Appearances & Witnesses

Reasons for Order

1. Introduction
2. Discussion
3. Findings
4. Disposition
Order

Appearances & Witnesses

1. For the Appellant (Janet M. Green)

Written presentation read into the record by:
Iris Fiorita

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

Counsel:
Les J. Zielinski

3. For the Developer (John Earl)

Counsel:
T. Daniel Tweel

Reasons for Order

1. Introduction

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

This is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. P-8, by Janet M. Green (the Appellant).

According to the Notice of Appeal filed with the Island Regulatory and Appeals Commission (the Commission) on September 30, 1998 (Exhibit A1), and as amended on October 9, 1998 (Exhibit A2) and November 5, 1998 (Exhibit A3), the Appellant has appealed a decision by the Minister of Community Services and Attorney General (the Minister) to issue a building permit on September 14, 1998 to John Earl (the Developer) to construct a hog barn and lagoon on provincial parcel number 226563 located in the Community of Kingston (Exhibit R18).

After due public notice, the Commission held a hearing on November 17, 1998 on preliminary matters only.

2. Discussion

The preliminary matters raised by the Department of Community Services and Attorney General and the Developer consist of two questions:

Does the Commission have the jurisdiction to hear this appeal; and

Does the Appellant have the right to amend her original notice of appeal.

The Minister's Position

The Minister's position is that the matters raised by the Appellant in this appeal are arguments based on environmental issues which are within the discretion of the Minister of Technology and Environment under the Environmental Protection Act R.S.P.E.I. 1988 Cap. E-9. The Minister argues that there is no right of an appeal under the Environmental Protection Act to the Commission and the only recourse for an appeal against a decision made by the Minister of Technology and Environment is by way of judicial review to the Courts. The Minister submits that the Appellant's grounds for appeal focus on environmental issues which are not matters which may be appealed to the Commission.

The Minister states that this position is supported in part by the Commission's previous decision in Order LA97-12¹ where it decided that it has no jurisdiction to hear an appeal from any decision made by the Minister of Fisheries and Environment (as the Minister then was) on decisions made under the provisions of the Environmental Protection Act.

The Minister's position is that the Commission is without jurisdiction to hear this appeal and therefore, the appeal should be dismissed.

On the issue of whether the Appellant should be permitted to amend her grounds for appeal, the Minister has advanced no position on this matter except to state that if the appeal should proceed to a hearing on the substantive matters of this case, the Appellant's position must be clearly stated to enable the Minister to defend his position.
The Developer's Position

The Developer concurs with the position of the Minister on the matter of jurisdiction and submits that the decision of the Minister of Technology and Environment is discretionary and any appeal is by way of a judicial review. It is, therefore, the Developer's position that the Commission does not have the jurisdiction to hear this appeal.

On the issue of whether the Appellant should be permitted to amend her notice of appeal, the Developer's position is that regardless of whether the Commission will allow these amendments, the grounds as submitted by the Appellant in Exhibits A2 and A3 focus on environmental matters which fall within the jurisdiction of the Environmental Protection Act and therefore, are not matters within the Commission's jurisdiction.
The Appellant's Position

The Appellant takes the position that she has appealed a building permit issued by the Minister of Community Services and Attorney General and that this building permit does not meet the conditions required under section 15 of the Planning Act Regulations.

For these reasons, the Appellant argues that the Commission does have the jurisdiction to hear this appeal.

The Appellant made no submissions on whether the amended grounds should be permitted.

3. Findings

Jurisdiction

On the issue of whether the Commission has the jurisdiction to hear this appeal, the Commission is bound by subsection 28(1) of the Planning Act which states:

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.

…

In advancing their positions, both the Minister and the Developer have relied upon a previous decision by the Commission (Order LA97-12) regarding an appeal by Ian Ford against a decision by the Minister of Community Affairs and Attorney General, dated October 17, 1997. This case too, focused on a proposed hog operation. In its decision, the Commission found that it did not have jurisdiction to hear this appeal as the grounds for the appeal were based on provisions under the Environmental Protection Act.

In considering the case now before the Commission, the Commission believes that there is a fundamental distinction that can and must be made between the two cases.

As stated in the Commission's Order LA97-12, the Appellant's grounds for appeal in that case focused specifically on certain sections of the Environmental Protection Act. In fact, as the decision states, any reference initially by the Appellant to certain sections of the Planning Act were cited by the Appellant in error and the Appellant amended his notice of appeal to reference only sections of the Environmental Protection Act. The Ford appeal was advanced solely on the basis of alleged errors under the Environmental Protection Act and, as a result, the Commission found it was without jurisdiction to hear this appeal. The Commission is still of the view that it has no jurisdiction to hear an appeal under the provisions of the Environmental Protection Act.

There is a significant distinction, however, between the Ford case and the Janet M. Green case now before the Commission.

In Ms. Green's appeal, we can see by the Notice of Appeal (Exhibit A1) that she has appealed the issuance of a building permit which was issued by the Minister of Community Services and Attorney General on September 14, 1998 (Exhibit R18). The authority for the Minister to issue such permit is found in section 12 of the Planning Act Regulations.

Under the provisions of section 28 of the Planning Act, the Commission has the authority and is duly bound to hear appeals by any party dissatisfied by a decision made by the Minister pursuant to the Planning Act Regulations. The only exception to this is prescribed by subsection 28(2) which states:

….

28.(2) Where the Lieutenant Governor in Council has by order declared that

(a)    a development for which approval is required under the Environmental Protection Act has met all the requirements of that Act and written approval has been given; and

(b)    the right of appeal to the Commission in respect of that development should be curtailed

subsection (1) has no application and there is no right of appeal to the Commission in respect of a decision on that development.

…

In the case now before the Commission, the Commission is not aware of any order issued by the Lieutenant Governor in Council to curtail the right of appeal with respect to this development.

In addition, the amendments to Ms. Green's Notice of Appeal, specifically those referenced in Exhibit A3 focus on matters which are contained in subsection 15(1) of the Planning Act Regulations.

Subsection 15(1) states:

15.(1) No building permit shall be issued where, in the opinion of the Minister, the proposed building or structure, or its alteration, repair, location or use or change of use

(a)    does not conform to

(i)    sections 35 to 37 and 40 to 45 of Part V and sections 69 to 71 of Part VIII of these regulations,
(ii)    any other regulations made under this Act, the Provincial Building Code or respecting fire prevention; or

(b)    would be detrimental to the convenience, health or safety of occupants or residents in the vicinity or the general public;

(c)    would precipitate premature development or unnecessary public expenditure, or would place undue pressure on the municipality or the province to provide services;

(d)    would result in undue damage to the natural environment;

(e)    would have a detrimental impact on surrounding land uses; or

(f)    would result in a fire hazard to the occupants or to neighboring buildings or structures.

…

The Minister argues and the Developer concurs that because Ms. Green's grounds "boil down" to environmental matters, they are matters which are within the discretion of the Minister of Technology and Environment and pertain to the Environmental Protection Act and not the Planning Act. Therefore, they argue the Commission does not have the jurisdiction to hear this matter.

The Commission does not accept this position and, on the contrary, finds that the grounds cited by Ms. Green are matters which the Minister must consider in the issuance of a building permit pursuant to the provisions of subsection 15(1) of the Planning Act Regulations.

To illustrate the Commission's position, we reviewed the case referenced by the Developer, that is, Commission Order LA96-03². In that decision, the Commission stated that such matters (pertaining to farm practices) are relevant only insofar as they support an argument under subsection 15(1) of the Planning Act Regulations. The Commission believes that, so too are environmental issues relevant insofar as they support an argument under subsection 15(1) of the Planning Act Regulations.

The Commission also believes that there are two separate and distinct processes and, in fact, two statutes that govern this development. Under the Environmental Protection Act, which falls under the responsibility of the Minister of Technology and Environment, the Developer is responsible for receiving approval for an undertaking (as defined therein). No appeal to the Commission is provided for in that Act.

In addition, under the Planning Act Regulations, which are the responsibility of the Minister of Community Services and Attorney General, the Developer must also receive a building permit – which decision to grant such permit may be appealed to the Commission.

Although the two processes may seem to become intermingled, the Commission is of the opinion that they are separate and distinct.

The Commission's position is supported by subsection 9(4) of the Environmental Protection Act (Exhibit R12) which states that the approval required by this section is in addition to any other requirement imposed by the province or a municipality. This supports the proposition that the provisions of the Environmental Protection Act are separate and apart from those under the Planning Act.

The Commission agrees with the Minister's position that subsection 15(1) of the Planning Act Regulations is broad in its scope. The Commission, however, also believes that all provisions under this section must be considered by the Minister before issuance of a building permit, including such matters as detrimental impact and undue damage to the natural environment – those grounds stated in the Appellant's submission referenced as Exhibit A3.

Further, as the Commission noted during the hearing, the decision of the Supreme Court of Prince Edward Island - Appeal Division (the Stated Case) in the reasons given by Mitchell, J.A., at page 7 of the decision where he states for the Court:
… that appeals under the Planning Act would take the form of a hearing de novo… . The findings of the person or body appealed from are irrelevant. IRAC must hear and decide the matter anew as if it were the original decision-maker.³

The Commission will, therefore, hear, consider and decide the issues of this case in accordance with the requirements and objects of the Planning Act and its Regulations.
Amendment to Notice of Appeal

On the issue of whether the Notice of Appeal can be amended, the Commission agrees with Mr. Tweel's observation that the Planning Act is silent on this matter. However, as stated during the hearing the Commission is guided by the decision of the Supreme Court of Prince Edward Island - Appeal Division in its decision referenced as the "Stated Case". In speaking for the Court, Mitchell, J.A., states at page 7, with respect to grounds of appeal under the Planning Act:
… The fact that an appellant must state the grounds of appeal and relief sought in writing to invoke the appeal procedure does not restrict the jurisdiction of IRAC in hearing or deciding the case. In situations where an appeal is by way of trial de novo, grounds of appeal do not serve the same function as they do for instance in appeals to this court… Their purpose in hearing de novo appeals is simply to alert the appeal tribunal and parties to the nature of the appellant's complaint with the decision, and the form of redress being sought.

The Commission believes that parties may be allowed to amend their Notice of Appeal, as long as the other parties to the matter are not prejudiced by such amendments. In arriving at this conclusion, the Commission is mindful of subsection 28(7) of the Planning Act. That section clearly states that the Commission is bound by the rules of natural justice and as such, must give all parties an opportunity for a fair hearing before it.

In this case, the Commission finds that although the Appellant has amended her Notice of Appeal on two separate occasions, it would appear that neither the Developer or the Minister are prejudiced by these amendments. If anything, the Commission believes that the Appellant by submission of Exhibit A3, has now provided a relatively clear statement of her grounds for appeal.

The Commission therefore finds that the Appellant is allowed to amend her original Notice of Appeal, dated September 30, 1998, to include those amendments made on October 9, 1998 and November 5, 1998.

This matter will now proceed to a hearing on the substantive matters of the appeal.

4. Disposition

An Order on preliminary matters will therefore be issued.

Order

WHEREAS Janet M. Green, the Appellant has appealed a decision by the Minister of Community Services and Attorney General to issue a building permit to John Earl to construct a hog barn and lagoon on provincial property number 226563 dated September 14, 1998;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on November 17, 1998 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 has the jurisdiction to hear this appeal;

2.    The Appellant is allowed to amend her notice of appeal dated September 30, 1998, to include those amendments made on October 9, 1998 and November 5, 1998;

3.    The Commission will proceed to hear the substantive matter of this appeal forthwith.

DATED at Charlottetown, Prince Edward Island, this 24th day of November, 1998.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Wes Rose, Commissioner
Arthur Hudson, 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.

¹    Commission Order LA97-12, Ian Ford v. Minister of Community Affairs and Attorney General, October 17, 1997.

²    Commission Order LA96-03, Donald Clarey and Keith MacKenzie v. Minister of Provincial Affairs and Attorney General, February 23, 1996.

³    Stated Case, In the matter of Section 14(1) of the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988 Cap. I-11, Province of Prince Edward Island, In the Supreme Court—Appeal Division, Docket AD-0706, July 18, 1997.