Order LA99-13 - LA99028 - Planning Appeal - Doris Caseley v. Municipal Council of Cavendish (Dec. 16/99)

Docket LA99028
Order LA99-13

IN THE MATTER of an appeal by Doris Caseley against a decision of the Municipal Council of Cavendish, dated September 23, 1999.

BEFORE THE COMMISSION

on Thursday, the 16th day of December, 1999.

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner

Order

WHEREAS on October 18, 1999, the Commission received an appeal filed by Doris Caseley (the Appellant) against a decision of the Municipal Council of Cavendish (the Respondent), dated September 23, 1999, to issue a building permit to Scott and Sandi Lowther (the Developers);

AND WHEREAS the Commission's jurisdiction in appeals of this nature is set out in Section 28(1) of the Planning Act, which states:

28.(1) Subject to subsection (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, appeal to the Commission. (Emphasis added)

AND WHEREAS the Notice of Appeal was received by the Commission on the 25th day after the Respondent's decision;

AND WHEREAS following receipt of the appeal, the Commission invited written comments from the Appellant, the Developer and the Respondent on the issue of whether the Appellant's right of appeal had expired;

AND WHEREAS the Developer and Respondent submitted that the Commission is without jurisdiction;

AND WHEREAS Errol Caseley on behalf of his mother Doris Caseley responded stating among other things that given the time for the Community's notice to reach his mother in Virginia and for her to sign the appeal and forward it back to the Commission, the 21 day period for filing an appeal could not be met;

AND WHEREAS the Commission is a creature of statute and only has the authority expressly conferred upon it by the Legislature;

AND WHEREAS the Legislature through the Planning Act, has clearly stipulated a time limitation for the filing of an appeal as set out in Section 28;

AND WHEREAS the Commission has no authority to waive the provisions of the Act;

AND WHEREAS the date of the decision and the date of the Notice of Appeal are not in dispute;

IT IS HEREBY ORDERED that the Commission is without jurisdiction to hear this appeal;

DATED at Charlottetown, Prince Edward Island, this 16th day of December, 1999.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Elizabeth MacDonald, 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.