Docket LW96007
Order LW97-01
IN THE MATTER of an appeal by Alex Calder against a decision by the Minister of Transportation and Public Works, dated April 24, 1996.
BEFORE THE COMMISSION
on Friday, the 12th day of December, 1997.
Wayne D. Cheverie, Q.C., Chair
Clayton Bulpitt, Commissioner
Debbie MacLellan, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses
1. For The Appellant
Counsel:
John L. MacDougall, Q.C.
2. For The Minister
Counsel:
Mark L. Gallant
Reasons for Order
1. Introduction
This Order and Reasons for Order pertains to preliminary matters only.
This is an appeal under Section 12 of the Roads Act Highway Access Regulations (No. EC580/95) by Alex Calder (the Appellant) against a decision by the Minister of Transportation and Public Works to deny issuance of an Entrance Way Permit for parcel number 219139 located at Riverdale.
On January 18, 1996 (and revised on March 18, 1996) the Appellant made application for an Entrance Way Permit to the subject property.
On April 24, 1996 the Department notified the Appellant by letter that: "This property fronts on a segment of the Trans Canada Highway that has been designated by the Province under the Roads Act as an arterial highway. This property is located outside of an area that has been designated for infilling and is on a section of highway having more than two traffic lanes. Therefore, subject to the Roads Act Highway Access Regulations, Part 1, General Section 4.(b), your application is denied."
The Appellant filed an appeal with the Island Regulatory and Appeals Commission (the Commission) on November 6, 1996.
Prior to the hearing the Commission notified the parties by letter dated November 26, 1997 as to a preliminary matter and raised the issue that there may be some question as to whether the Commission has the jurisdiction to hear this appeal in light of the provisions of Section 12 of the Roads Act Highway Access Regulations.
The Commission heard submissions on this preliminary matter at a public hearing on December 4, 1997, after due public notice.
2. Discussion
The Appellant's position may be summarized as follows:
In the letter of appeal Mr. MacDougall states: "… Mr. Calder submits that the Roads Act Highway Access Regulations, Part 1 General, section 4(b), has been enacted for an improper purpose, that is, the encouragement of industrial/commercial development and the discouragement of residential use and is, therefore, ultra vires."
As to the preliminary matter raised by the Commission, Mr. MacDougall argues that the Commission does have the jurisdiction to hear this appeal.
Mr. MacDougall submits that under the section 1.1 of the Planning Act Regulations an entrance way permit is a prerequisite to obtaining a building permit and under these Regulations there is a right of appeal to the Commission pursuant to the provisions of the Planning Act.
In the alternative, Mr. MacDougall argues that despite the Minister's reference to section 4(b) of the Roads Act Highway Access Regulations, in the letter denying the application for an entrance way permit, the Minister's reason for denial should have been based on Section 20 of the Regulations and therefore the reference in section 12 (2) of the Regulations which limits the right of appeal does not apply in this situation.
Mr. MacDougall contends that the proposal by Mr. Calder is simply to build a cottage and use an existing entrance way – this proposal is not for a change in use and is not for a commercial or industrial operation and does not require a new entrance way.
Mr. MacDougall submits that the government has wrongly invoked section 4 of the Regulations to defeat this application.
For these reasons, Mr. MacDougall requests the Commission proceed to hear the substantive matters of this appeal.
The Minister's position may be summarized as follows:
Mr. Gallant, on behalf of the Minister, submits that Part 1 – General and specifically section 4(b) of the Highway Access Regulations applies in this instance.
Mr. Gallant states that the Appellant already has an entrance way and is required to change the use of the access to permit the development of a cottage and therefore section 4 of the Regulations applies. Further, the Appellant's property is located on a segment of highway having more than two traffic lanes and is outside of an area designated for infilling.
Mr. Gallant contends that for these reasons there is no discretion on the part of the Minister to issue a permit pursuant to the provisions of section 12(1) and as the Minister's decision was made pursuant to section 4, there is no appeal to the Commission pursuant to the provisions of section 12(2).
Mr. Gallant argues that the Commission does not have the jurisdiction to hear this appeal.
3. Findings
As an appellate tribunal the Commission is a creature of statute bound by the powers given to it by the legislation. Under the Roads Act Highway Access Regulations the right of appeal is expressly provided for under section 12.
Section 12 states:
12.(1) Where the Minister has discretion to issue an entrance way permit pursuant to these regulations, a decision of the Minister may be appealed to the Island Regulatory and Appeals Commission, by the applicant.
12.(2) For greater certainty, where the Minister makes a decision pursuant to section 4, there is no appeal to the Island Regulatory and Appeals Commission on any grounds other than an error in the determination of available safe stopping sight distance.
Therefore, according to section 12, the jurisdiction of the Commission is clearly restricted only to certain matters, i.e., where the Minister has the discretion to issue an entrance way permit pursuant to these regulations and where a decision is made by the Minister under section 4 and the grounds for appeal are that there is an error in the determination of available safe stopping sight distance.
Mr. MacDougall argues that the reason for denial should have been section 20 and that the Minister has invoked section 4 so as to deny his clients ability to appeal. The Minister maintains that subsection 4(b) is the reason for denial.
Section 4(b) states:
4. Notwithstanding any other provision of these regulations, no entrance way permit shall be issued, no entrance way shall be established and there shall be no change of use of an existing entrance way:
(b) if the location of the entrance way would be on a segment of highway having more than two (2) traffic lanes and is outside of an area designated for infilling in Schedule "A-3" for any purpose other than…
…
Despite Mr. MacDougall's contention that the reason for the Minister's decision to deny this application should have been based on section 20, there is nothing to support this. In fact, the record shows in the letter to Mr. Calder dated April 24, 1996 that the Minister's decision was based on subsection 4(b). The Commission is of the opinion that the application by the Appellant for an entrance way permit must, notwithstanding any other provision of these regulations, satisfy the provisions of subsection 4(b) before a permit may be issued.
By virtue of the facts in this case, coupled with the language of subsection 4(b), the Minister is expressly prohibited from issuing an entrance way permit.
It is the Commission's opinion that the Minister's decision to deny this application is properly based on subsection 4(b) and therefore subsection 12(2) applies in this instance.
It is also the Commission's opinion that it does not have the authority to expand its jurisdiction to hear appeals on "other" matters which are not prescribed by the Highway Access Regulations.
Therefore, for the reasons stated the Commission finds it does not have the jurisdiction to hear this appeal.
4. Disposition
An order on the preliminary matter will therefore be issued.Order
WHEREAS
Alex Calder has appealed a decision made by the Minister of Transportation and Public Works to deny issuance of an entrance way permit;AND WHEREAS
the Commission heard submissions on preliminary matters at a public hearing conducted in Charlottetown on December 4, 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 Roads Act Highway Access Regulations;IT IS ORDERED THAT
1. The Commission is without the jurisdiction to hear this appeal.
DATED
at Charlottetown, Prince Edward Island, this 12th day of December, 1997.BY THE COMMISSION:
Wayne D. Cheverie, Q.C., Chair
Clayton Bulpitt, Commissioner
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.