Docket LA98012
Order LA98-16

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

BEFORE THE COMMISSION

on Monday, the 21st day of December, 1998.

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

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Background

4. Findings

5. Disposition

Order

Appearances & Witnesses

1. For the Appellant, Janet M. Green

Counsel:
D. Spencer Campbell

Witnesses:
 Janet M. Green
John E. Earl
Alan P. Godfrey
David Hume
Linda E. Griffin

2. For the Respondent, the Minister of Community Services and Attorney General

Counsel:
Les Zielinski

Witnesses:
Russell Campbell
Alan P. Godfrey
Donald Walters

3. For the Developer, John Earl

Counsel:
T. Daniel Tweel

4.    Members of the Public:

Iris Marie Fiorita
Lois MacDonald
Joan Rhodenizer
Diane Murphy
Gordon Lank
Alan Burke

Reasons for Order

1. Introduction

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 Respondent) 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). The Appellant is seeking to have this building permit revoked.

On November 24, 1998, the Commission issued Order LA98-15 with Reasons to dispose of certain preliminary matters raised by the Respondent and the Developer.

After due public notice, the Commission proceeded to hear the present appeal on December 2, 3 and 4, 1998, which concluded, prior to summations, with submissions from six members of the public.

2. Discussion

2.1 The Appellant

The Appellant's position may be summarized as follows.

The Appellant submits that the Respondent has an obligation and ultimate responsibility to approve or deny building permits. In doing so, the Respondent must consider the provisions under subsection 15(1) of the Planning Act Regulations (the Regulations).

The Appellant contends that for those matters pursuant to subsection 15(1) of the Regulations, which relate to environmental issues, the Respondent relied on an assessment made by the Minister of Technology and Environment. The Appellant does not dispute the right of the Respondent to delegate this task to the Minister of Technology and Environment, but argues that the Respondent does so at his peril because it is the Respondent who must be satisfied that the requirements of subsection 15(1) of the Regulations are met. The Appellant submits that in carrying out this assessment, the Department of Technology and Environment erred in applying the Guidelines for Manure Management and Separation Distances in Prince Edward Island (the Guidelines – Exhibit A6) and as a result the proposed development fails to meet these Guidelines.1

The Appellant further submits that since the information provided by the Department of Technology and Environment is in error, the Respondent has not complied with subsection 15(1) of the Regulations as the Minimum Separation Distance (MSD) is not met and, as a result, the proposed development should not proceed.2

The Appellant requests that the building permit be quashed.

2.2 The Respondent

The position of the Respondent may be summarized as follows.

The Respondent submits that the Kingston area is not subject to an Official Plan or Bylaw and, as a rural agricultural community, the proposed development is consistent with predominant land uses in the area.

On the matter of whether subsection 15(1) of the Regulations has been complied with, the Respondent submits that the Minister of Technology and Environment has approved the proposed development (undertaking) pursuant to subsection 9(1) of the Environmental Protection Act R.S.P.E.I. 1988 Cap. E-9 and the MSD was used only as a guide and other mitigating factors were also considered.

The Respondent submits that all requirements and preconditions to issuing a building permit were met and a permit was therefore issued.

The Respondent requests that the appeal be dismissed.

2.3 The Developer

The Developer's position may be summarized as follows.

The Developer submits that the Respondent has carried out his responsibility under subsection 15(1) of the Regulations.

The Developer argues that the Appellant has provided no substantive evidence that there will be any impact or adverse effect as a result of the proposed development.

The Developer requests that this appeal be dismissed.

3. Background

The Developer made application on June 22, 1998 for Development Approval (Exhibit R1) seeking a building permit to construct a barn to house hogs. The barn will have dimensions of 180 feet long by 48 feet wide. The Developer's property is approximately 6.5 acres and is identified as provincial property number 226563.

According to Exhibit R1 and the Developer's evidence, there are four (4) existing barns on his property. The Developer states the dimensions of these barns and their uses are as follows:

1.    - 40 feet x 55 feet used to house hogs
2.    - 30 feet x 70 feet used to store machinery
3.    - 30 feet x 78 feet used to house hogs
4.    - 30 feet x 78 feet used to house hogs

According to the document entitled Environmental Assessment Intensive Livestock Information (Exhibit R1), the Developer currently operates a hog finishing operation with approximately 400 hogs and the proposal is to increase the size of the operation by 1000 hogs to 1400 hogs (this total was subsequently reduced to 1200 hogs as set out in Exhibit R19). During the hearing the Developer testified that the number of hogs on the site has fluctuated at any one time from 350 hogs to 600 hogs.

The Developer's property is located in a geographic area which according to the parties may be characterized as a rural area with mixed land uses consisting of active farm operations, non farm residences and residential subdivisions.

The Appellant's residence is located on property number 402503 which is situated to the west of the Developer's property and is separated from the Developer's property by land in the ownership of Enterprise P.E.I.

Figure 1 shows the location of the properties in question.

Figure 1

PROPERTY LOCATION

4. Findings

After careful review of the evidence, the submissions of all the parties, and the applicable law, and for the reasons hereinafter stated, the Commission concludes that the appeal must be allowed.

The Commission's decision focuses principally on whether the Respondent has properly exercised his authority as prescribed by the Planning Act Regulations specifically as it relates to subsection 15(1). In deciding this appeal we have considered the following:

4.1 What is the role of the Commission and what can be reviewed?

As stated by the Commission in Order LA98-15 on preliminary matters, appeals under the Planning Act take the form of a hearing de novo and the finding of the body appealed from is irrelevant as the Commission must hear and decide the matter anew as if it were the original decision maker.3 As a creature of statute the Commission must also make its decision within the existing laws.

In issuing a building permit the Respondent is bound by subsection 15(1) of the Regulations which 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. (Emphasis added)

Generally, subsection 15(1) of the Regulations calls upon the discretion of the Respondent. As determined in previous appeals, for the Commission to overturn the decision of the Respondent it must find that his opinion is unreasonable or based on the wrong factors.4 Further, in setting out the parameters of its power on appeal following the stated case to the Appeal Division of the Supreme Court of Prince Edward Island, supra, the Commission had this to say in Norman Hall, et al, v. The City of Charlottetown at p.5:5

…

So while it is clear that the Commission has the power to substitute its decision for that of the person or body appealed from, it should exercise that discretion carefully. If the decision-making body appealed from followed the proper procedures and reached its decision on the basis of sound planning principles, then even though the Commission may disagree with the decision, the Commission ought not to interfere with that decision. If, on the other hand, the body appealed from did not follow the proper procedures or apply sound planning principles to the rezoning application (or as, in this case, the concurrent application to amend the Official Plan), then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.

…

It is against this backdrop that the Commission approached the present appeal.

According to Exhibit A3, the Appellant's grounds for appeal focus on clauses 15(1) (b), (d) and (e) of the Regulations as highlighted above.

In the exercise of his authority under subsection 15(1) of the Regulations, the evidence of the Respondent's representatives supports the fact that the Respondent sought input from a number of sources prior to issuing the building permit. For example, Exhibit R2, indicates that the Respondent sought comments from the Kingston Community Council. In addition, he sought comments from the Minister of Technology and Environment (Exhibit R3). According to the Respondent's representatives this was normal procedure when dealing with applications of this type.

According to the evidence, the Respondent considered subsection 15(1) of the Regulations and addressed clauses (b), (d) and (e).

In order to address clause 15(1)(b) of the Regulations, the Respondent's representative conducted an on site inspection and considered such matters as highway access, site topography, the siting of the proposed building with respect to set back requirements and whether the proposed development met the requirements of the Regulations in terms of the physical location of the building. The Respondent's representatives also stated that they were satisfied that this was a rural area and the development as proposed is traditionally approved adjacent to residential uses. The Respondent therefore determined that the proposed development would not be detrimental to the convenience, health or safety of occupants or residents in the vicinity or the general public.

In considering clauses 15(1)(d) and (e) of the Regulations, the Respondent's representatives stated that they relied entirely on the Department of Technology and Environment for their expertise in environmental matters. As the Minister of Technology and Environment approved this "undertaking" (as defined in the Environmental Protection Act), the Respondent used this information to determine that clauses 15(1)(d) and (e) of the Regulations would be satisfied. During the hearing the Respondent led no evidence that any other form of analysis was undertaken by him in his consideration of clauses 15(1)(d) and (e) of the Regulations.

The Commission agrees with the Respondent's contention that the actions to seek advice and expertise from other Departments and the Community of Kingston are appropriate. However, the Commission must also agree with the Appellant's contention that when the Respondent does so, he must use the information obtained from these sources at his peril as the Respondent has ultimate responsibility to insure compliance with the Planning Act and Regulations before a building permit is issued.

During the hearing the Respondent questioned whether the Commission should "go behind" or examine the analysis conducted by the Minister of Technology and Environment. The Commission agrees that it does not have jurisdiction to hear appeals of decisions under the Environmental Protection Act. The Commission confirmed this in Order LA97-12 in the Ian Ford v. Minister of Community Affairs and Attorney General case where the Appellant based his grounds for appeal solely on the Environmental Protection Act:6

…

Although the Appellant argues that certain decisions by the Minister of Fisheries and Environment were conditions precedent to the issuance of a building permit granted by the Minister of Community Affairs and Attorney General, the Commission finds that it has no jurisdiction to hear an appeal from any decision made by the Minister of Fisheries and Environment on issues made under the provisions of the Environmental Protection Act.

…

In the case now before the Commission, we are not dealing with an appeal under the Environmental Protection Act, but rather an appeal under the Planning Act.

The Commission is of the view that when the Respondent sought the advice of the Minister of Technology and Environment in order to discharge his (i.e. the Respondent's) obligations under clauses 15(1)(d) and (e) of the Regulations, then the analysis employed by the Minister of Technology and Environment must be reviewed by the Commission. This is the case because the Respondent's evidence is that he relied "entirely" on the Minister of Technology and Environment for this purpose.

Since this is a hearing de novo , the Commission is not limited only to what the Respondent did consider, but must also include any new evidence presented at the appeal hearing.

4.2 What information was relied on by the Respondent ?

The question as to what information the Respondent considered and relied on to determine that clauses 15(1)(d) and (e) of the Regulations would be complied with, must now be considered.

During the two and a half days of this hearing, the Commission heard considerable evidence relating to the Guidelines (Exhibit A6) and how MSD was applied or should have been applied. In this regard, the Commission heard evidence from Alan Godfrey, Environmental Assessment Coordinator with the Department of Technology and Environment who testified that he relied on an assessment conducted by representatives from the Department of Agriculture and Forestry for their calculation on MSD.

The Commission also heard evidence from Russell Campbell who is a Farm Building Officer with the Department of Agriculture and Forestry. Mr. Campbell states that he has been a Technician with the Department of Agriculture and Forestry for approximately 24 years and has been administering these Guidelines for the last two years. In Exhibit A10, he states that it was his task to provide comments to the Department of Technology and Environment on livestock building permit applications using the Guidelines.

Mr. Campbell's evidence is that in his application of the MSD he used the number of hogs both pre construction and post construction as opposed to the housing capacity as specifically called for in the Guidelines. In addition, Mr. Campbell states that no Land Use Factor of "2", as again specifically called for in the Guidelines, was applied to the MSD for the subdivisions located across the Kingston Road from the proposed development.7 It was his contention that because the subdivisions were not "zoned" residential, the Land Use Factor is not applied. He also stated that he applied the MSD in this case in a manner which is consistent with the manner in which the Guidelines have always been applied by the Department of Agriculture and Forestry. Mr. Campbell indicates that his application of the Guidelines is consistent with how his former superior instructed him to apply the MSD.

Mr. Godfrey pointed out that the Guidelines are the responsibility of the Department of Agriculture and Forestry and that the methodology employed by Mr. Campbell is in line with his understanding of the approach used over the years. Mr. Godfrey also stated that he calculated the MSD as well - although using a slightly varied method, which he believed was more precise, but still based on the number of hogs and not "housing capacity". In addition, Mr. Godfrey concurred that a Land Use Factor of "2" should not be applied.

Mr. Godfrey and Mr. Campbell did, however, agree that the wording in the Guidelines called for the use of housing capacity rather than the number of hogs in the required calculations and that residential subdivision is identified in the Guidelines as requiring an application of a Land Use Factor of "2".

In a letter to Linda Griffin dated September 18, 1998 (Exhibit A10), Mr. Campbell calculated that the proposed hog barn warranted a MSD of 851 feet to the closest neighbour's residence. Mr. Campbell also concluded that no residences were within the MSD limits. Based on Mr. Campbell's calculations, the Respondent argues that he did not err as he relied appropriately on the expertise of the Department of Technology and Environment and the Department of Agriculture and Forestry to determine that the MSD was met. On the strength of the foregoing, the Respondent used this information to determine that clauses 15(1)(d) and (e) of the Regulations would be complied with.

The Respondent's witnesses also contend that the MSD was but one factor considered in the Minister of Technology and Environment's decision to approve this "undertaking". According to Mr. Godfrey, the Minister of Technology and Environment also considered other mitigating factors that could reduce the odour, such as a chemical application of "Pit Boss" or a cover over the waste lagoon system. The Respondent argues that these Guidelines are simply that – guidelines, and therefore do not hold as much weight as a statute, regulation or policy.

The Appellant contends that the Minister of Agriculture and Forestry and, in turn, both the Minister of Technology and Environment and the Respondent have erred in their application of these Guidelines. The Appellant outlined a number of deficiencies with the application of the MSD and argued that the rationale for the Guidelines is to calculate the housing capacity of the proposed expansion and not the number of hogs. In addition, the Appellant contends that certain variables accounting for such factors as the subdivisions located across the Kingston Road from the proposed development were not applied properly.

The Commission has closely reviewed the Guidelines in all aspects. In doing so, the Commission has come to the conclusion that although the Guidelines may have been applied consistently by the Department of Agriculture and Forestry since 1986, it is clear, based on the evidence, they have not been applied properly.

The Commission understands that the Guidelines prescribe a mathematical formula which when applied correctly, determines the adequate separation distance between non-compatible land uses. This formula is made up of many variables and, if applied properly, will assist in reducing the intensity of odor from a livestock building for neighbouring land uses. However, the Commission is of the opinion that if these variables are not applied correctly, the formula has no validity and therefore its ability to establish a suitable separation distance to reduce the intensity of odor is totally undermined.

In reviewing the Guidelines, the Commission calculated the MSD for the proposed development based on the application of the Guidelines as written. In doing so, the Commission included not only the three existing barns that are used to house hogs, but also a barn of approximately 40 feet by 75 feet (which according to Russell Campbell was used to house hogs and was torn down to make way for the proposed hog barn). This is necessary to accurately establish the existing situation prior to the proposed expansion as required by the Guidelines. In addition, despite the evidence of both Mr. Campbell and Mr. Godfrey that a Land Use Factor of "2" should not be applied to the MSD calculation, the evidence is that there are subdivisions located across the Kingston Road (identified in Exhibits A7 and A8). These are "residential subdivisions" within the meaning of the Guidelines and within the definition contained in the Planning Act Regulations. The Commission therefore applied the Land Use Factor of "2" , as is specifically called for in the Guidelines.

The Commission calculates the base MSD for the proposed hog barn is approximately 964 feet. As provided for in the guidelines, this distance is reduced by 25% to account for prevailing summertime winds to a MSD of approximately 723 feet. The use of the 25% reduction factor was not contested during the hearing.

As the Appellant's residence, according to her testimony, is located approximately 792 feet from the proposed hog barn, her residence is beyond the MSD. However, the base MSD must be multiplied by 2 (the Land Use Factor) to arrive at the minimum distance for the residential subdivisions. When the Land Use Factor of "2" is applied, the MSD is expanded to approximately 1446 feet and thus some or all of the properties in the subdivisions located across the Kingston Road from the proposed development fall within the MSD. In some cases, not only do some of the involved residences in the subdivisions fall within the MSD, but fall substantially within the MSD.

The Commission therefore concludes that the Guidelines have not been applied as written and that when they are applied correctly, the required MSD from the proposed barn to the subdivisions across from the site can not be met.

4.3 How much weight was assigned to the Minimum Separation Distance?

In reviewing the evidence, the Commission believes that the various Departments placed a great deal of weight on the MSD and, in fact, it would appear that the MSD may have been a determining factor in the Minister of Technology and Environment's decision to approve this "undertaking", and the subsequent decision by the Respondent to approve the building permit.

In determining the weight which was attached to the MSD, the Commission focused on the exhibits entered in this appeal. In particular, the Commission considered Exhibits R7, R13, A10, A12 and R19 as evidence that the MSD was a very important factor.

Exhibit R7 is a letter to Stanley Cormier, dated August 28, 1998 from Alan Godfrey which states:

…

The major issues or concerns noted were odour, groundwater, and surface water protection. There are two principle methods used for mitigation of odours from intensive livestock facilities. This includes separation distances from surrounding residences. In this instance the minimum separation distance (MSD) for this proposed expansion is 851 feet measured from the nearest part of the barn to the nearest corner of neighbouring residences. Department of Agriculture and Forestry staff have done actual on-site measurements on August 26, 1998 and have determined that no residences fall within the MSD. Given that the proposed building site meets MSD requirements, the primary odour mitigation technique has been satisfied. (emphasis added)

According to Exhibit R13, in response to questions raised by concerned residents of Kingston, Alan Godfrey states in a letter to David Hume, dated September 4, 1998:

Question 1

When the hog farm is up and running what daily effects is this going to have on the air quality of our community? Are odour distances going to be monitored.

Answer

There should be no significant effect on the Community's air quality as odours have been addressed through the minimum separation distance (MSD) requirements and commitments to good management. Odour distances will not be monitored. (emphasis added)

Question 5

Is this hog farm operation too large in scale to the property it sits on and the heavy residential development so close?

Answer

The proposed facility meets the MSD requirements and the proponent has a spreading agreement with an area farmer with a more than adequate land base. In addition, it meets all building setback requirements from property lines in accordance with Planning Act Regulations. (emphasis added) 

Question 12

What regulations, standards and guidelines have been met to date with this application? What other regulations, standards and guidelines will have to be met before final approval is granted….

Answer

Guidelines which have been satisfied include:

-    minimum separation distance (emphasis added)
-    quality of design and construction
-    commitment to good management by the proponent
-    adequate land base for spreading

Regulatory requirements:

-    environmental approval
 -    building permit

According to Exhibit A12, in an E-mail to Alfie Wakelin, Russell Campbell states:

… The separation distance required for an expansion from 400 feeders to 1400 feeders is 377m or 1237 ft. which may be reduced by 25% because of favorable wind conditions, which gives him MSD of 928'. The prevailing winds are south-southwest to west-southwest in the summer. There are a number of residences in the area within that radius that would have to be notified. The manure storage proposed is more than adequate to handle his feeder barn. If the surrounding neighbours do not oppose, I would approve of the permit.(emphasis added)

In a letter to Linda Griffin dated September 18, 1998 (Exhibit A10), Russell Campbell states:

Mr. John Earl's application for an expansion to his hog operation warranted a MSD (minimum separation distance) of 851' to the closest neighbor's residence as part of the guidelines. In this case no residences were inside the MSD requirements. My calculations for the residences in the area are as follows:

Newson Residence---------861'
Rice Residence--------------873'
Goodwin Residence--------864'
Baker Residence------------903'
Ellis Residence---------------864'
Mossey Residence----------897'
Powell Residence-----------858'
(emphasis added)

It is clear from all of the foregoing references that MSD was a key factor in approving this proposed development. This conclusion is further supported by Exhibit R19 which is the approval for the expansion by the Minister of the Technology and Environment dated October 6, 1998. The approval was given subject to the following:

… total number of feeder hogs being reduced to 1200 hogs and moving the proposed location of the barn a distance of four (4) feet to the East.

According to Exhibit R19, the Minister of Technology and Environment also states that "…this expansion (as modified) satisfies the minimum separation distance requirements as stipulated by the PEI Department of Agriculture Manure Management Guidelines (1986)".

In addition, it is the Commission's understanding that the total number of hogs was reduced from 1400 to 1200 and the barn was moved 4 feet to the East purportedly to allow the MSD, as calculated by the Department of Agriculture and Forestry, to be met. This clearly is a concrete example of the importance placed on the MSD in assessing the impact of the proposed barn on neighbouring land uses.

The Commission agrees with the Respondent's contention that there are other mitigating factors which may be applied to reduce the potential impacts associated with odour. However, it is the Commission's opinion that MSD appears to be the primary mitigating factor and one which has been given the greatest weight.

4.4 Conclusion

Since the Commission has found that the MSD has not been applied properly by the Department of Agriculture and Forestry, it follows that the very foundation upon which the Respondent made his decision to issue the building permit, is based on incorrect information.

As the Commission has stated in its decision on preliminary matters, the Commission has no jurisdiction over the decision by the Minister of Technology and Environment to approve this "undertaking". However, the Commission's jurisdiction requires it to consider the decision of the Respondent in the administration of the Planning Act Regulations and, as such, the Commission finds that subsection 15(1), specifically clauses (d) and (e), have not been satisfied and therefore the permit must be quashed.

In making this finding the Commission would be remiss if it failed to acknowledge the various government representatives who appeared before the Commission on this matter. The Commission believes that they were sincere in their efforts to minimize the impacts of this proposed development on the environment and the neighbouring land uses.

The Commission notes that during this hearing it was advised that construction on the project had commenced and that the project was close to 95% complete. Any such construction in situations where a building permit is appealed, is carried out at the developer's peril. The Commission staff advised the Developer of this fact at the time the appeal was filed.

5. Disposition

An Order allowing the appeal 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 on September 14, 1998 to John Earl to construct a hog barn and lagoon on provincial parcel number 226563 located in the Community of Kingston;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on December 2,3 and 4, 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 appeal is allowed and Building Permit No. C-275-98 issued to John Earl on September 14, 1998 is hereby quashed.

DATED at Charlottetown, Prince Edward Island, this 21st day of December, 1998.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Arthur Hudson, Commissioner
Weston Rose, 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    Guidelines for Manure Management and Separation Distances in Prince Edward Island, P.E.I. Department of Agriculture, 1986.
2    Minimum Separation Distance (MSD) as defined in the Guidelines.
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.
4    Commission Order LA95-15, Joan and Gerard Blacquiere v. Department of Provincial Affairs and Attorney General, September 28, 1995.
5    Commission Order LA98-06, Norman Hall, et. al. v. The City of Charlottetown, April 9, 1998.
6    Commission Order LA97-12, Ian Ford v. Minister of Community Affairs and Attorney General, October 17, 1997.
7    Land Use Factor - this term is used in Table 2 of the Guidelines to determine minimum distance from certain neighbouring land uses. A factor of "2" is applied to "commercial, residential subdivision or zoning, institutional and recreational" land uses.