Order LA00-01 - Planning Appeal - LA99016, LA99018, LA99019, LA99020 & LA99024 - Arthur Jennings et al. v. City of Charlottetown & Minister of Community Services & Attorney General (Jan. 11/00)

Dockets: LA99016, LA99018, LA99019, LA99020 and LA99024
Order LA00-01

IN THE MATTER of certain appeals filed by Arthur Jennings, et al. against decisions by the Municipal Council of the City of Charlottetown, dated July 26 and 28, 1999 and by the Minister of Community Services and Attorney General, dated August 25, 1999.

BEFORE THE COMMISSION

on Tuesday, the 11th day of January, 2000.

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition
Order

Appearances & Witnesses

1.    For The Appellants

Arthur Jennings
Philip Wood
Board of Governors of St. Dunstan's University, represented by Alan C. Cheverie, Legal Counsel
Superior Properties & Rentals Inc. and Superior Sanitation Services Inc., represented by John K. Mitchell, Q.C., Legal Counsel
D. Ron Burke

2.    For The Respondents

The City of Charlottetown

Legal Counsel:
David W. Hooley, Q.C.

The Minister of Community Services and Attorney General

Legal Counsel:
Les J. Zielinski

Reasons for Order

1. Introduction

The Appellants in this matter have appealed under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8.

The Appellants are:

Arthur Jennings - identified as Appeal LA99016;

Philip Wood - identified as Appeal LA99018;

Board of Governors of St. Dunstan's University - identified as LA99019;

Superior Properties and Rentals Inc. Superior Sanitation Services Inc - identified as LA99020; and

D. Ron Burke - identified as LA99024.

The Appellants are appealing a July 26, 1999 decision by the Municipal Council of the City of Charlottetown (the City) to adopt the City of Charlottetown Official Plan (the Official Plan) and further decisions by the City on July 26, 1999 (first and second reading) and July 28, 1999 (third reading) to pass the City of Charlottetown Zoning and Development Bylaw (the Bylaw). The Appellants are also appealing decisions subsequently made by the Minister of Community Services and Attorney General (the Minister) on August 25, 1999 to approve the Bylaw and the Official Plan. The Appellants are seeking an order from the Commission to quash the decisions by the City and the Minister and declare the City's Official Plan and Bylaw to be null and void.

By letter, dated August 18, 1999, the City raised a preliminary matter contending that the Island Regulatory and Appeals Commission (the Commission) does not have jurisdiction to hear an appeal pursuant to Section 28 of the Planning Act, regarding the adoption by the City of an Official Plan and Bylaw. The Commission decided to deal with the preliminary issue of the question of jurisdiction before moving to the merits of the intended appeals.

With the concurrence of all parties, written pre-hearing submissions on the preliminary matter were filed with the Commission. The Commission held a hearing on December 22, 1999 to hear oral submissions from all parties on the preliminary matter.

For administrative purposes the hearings for the appeals filed by the Appellants in this matter have been consolidated.

2. Discussion

Arguments advanced by the Appellants

The Appellants, for reasons set out in their submissions to the Commission, contend that the Commission has appellate jurisdiction to hear their appeals.

Central to the position of the Appellants are the following:

The Commission has the jurisdiction to deal with land use issues as prescribed by the provisions contained in the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988 Cap. I-11. and the Objects as contained in the Planning Act.

The Objects of the Planning Act and the provisions of the Island Regulatory and Appeals Commission Act are best obtained by giving a fair, large and liberal interpretation to the Commission's jurisdiction as prescribed by the Interpretation Act R.S.P.E.I. 1988, Cap.I-8.

Given the nature of the problem and the Commission's expertise, the Commission is the proper forum for such matters to be heard.

The Official Plan and Bylaw in question are effectively amendments to those official plans and bylaws which previously existed in the former municipalities which now make up the City of Charlottetown. The Commission has, in the past, found that it has jurisdiction to hear appeals concerning amendments.

The process undertaken by Council and the Minister to make and adopt the Bylaw and Official Plan must be viewed as decisions in respect of the administration of bylaws or regulations which are appealable decisions under the provisions of Section 28 of the Planning Act.

Arguments advanced by the Respondents

The Respondents, for reasons set out in their submissions to the Commission, take a contrary position to that of the Appellants and contend that the Commission does not have jurisdiction to hear these appeals.

Key points argued by the Respondents are the following:

The City's position is that whereas, previous to 1994, the Commission had the authority under the Planning Act and the Island Regulatory and Appeals Commission Act to approve official plans and amendments thereto, these powers were subsequently removed by the Legislature and vested in the Minister.¹ The Commission no longer has the power or jurisdiction under either Act to make any determination in relation to the validity of official plans adopted by Island municipalities under the provisions of the Planning Act. Therefore, the Commission has no jurisdiction to hear the Appellants' appeals.

The City also contends that the Commission's statutory jurisdiction to deal with appeals under the Planning Act is both established by and limited by the provisions of Section 28 of the Planning Act. This section limits appeals to decisions involving "…the administration of regulations or bylaws made pursuant to the powers conferred by this Act…". The City takes the position that the adoption by the City of the Official Plan and the passing of the Bylaws are not decisions in respect of the "administration of regulations or bylaws".

The Minister relies on a previous decision of the Commission, Order LA98-02, Gary Paynter v. Minister of Community Affairs and Attorney General, in which the Commission decided that the decision of the Minister to approve a Bylaw amendment was not a decision within the administration of the regulations and therefore not appealable under Section 28 of the Planning Act. The Minister contends that when the Commission had the authority to approve Official Plans, its decision was subject to review by the Courts. With the removal of the Commission and the substitution of the Minister as the approving authority, the related amendments to the Planning Act and the Island Regulatory and Appeals Commission Act did not confer a right of appeal of the Minister's decision on the Commission – a right of review continues to rest with the Courts.

3. Findings

As the Commission has often stated, it is a creature of statute with the powers and jurisdiction prescribed by statute. In this case, the Commission's powers are derived from the Planning Act and the Island Regulatory and Appeals Commission Act.

The Commission's jurisdiction in appeals under the Planning Act is set out in subsection 28(1), 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.

The question before the Commission in the preliminary matter is whether the following decisions are of the nature contemplated under the provisions of subsection 28(1) of the Planning Act and, thereby, subject to appeal under the Planning Act.

The City's decision to adopt the Official Plan.

The City's decision to pass the Bylaw.

The Minister's decision to approve the Official Plan.

The Minister's decision to approve the Bylaw.

The Commission is restricted to appeals which are filed by a person who is dissatisfied with a decision of a Council in the administration of bylaws made pursuant to the powers conferred by the Planning Act, or a decision of the Minister in the administration of the regulations made pursuant to the powers conferred by the Planning Act.
The City's Decisions

With the foregoing in mind, the Commission must first determine under what authority the City made its decisions on July 26 and July 28, 1999 to give first, second and third readings to pass the Bylaw and its July 26, 1999 decision to adopt the Official Plan.

The authority for the City to adopt an official plan is found in the provisions of the Planning Act, specifically Sections 11 through 14, which set out a process for holding public meetings, maintaining a public record, the contents of the official plan and the approval process.

The provisions for making bylaws are found in Sections 16 through 20 of the Planning Act, including such matters as the requirement for public meetings and the approval process.

Having considered all of the arguments advanced by all the parties, it is the Commission's opinion that the decisions by the City in this case were not decisions in respect of the administration of regulations or bylaws, but were decisions made pursuant to specific statutory provisions of the Planning Act.

The City's Official Plan and Bylaw must be viewed as something greater than merely an amendment or series of amendments to those official plans and bylaws which previously existed. On the contrary, the Commission views Charlottetown and its Official Plan and Bylaw as a new City with a new Official Plan and Bylaw, albeit an amalgamation of many parts consisting of the former municipalities which had their own official plans and bylaws. Further, the Commission views the adoption of the Official Plan and the making of the Bylaw, decisions by Council under the statutory powers given to all municipalities to carry out these functions under the Planning Act, and not decisions within the administration of bylaws as provided in subsection 28(1) of the Planning Act.

The City's decisions to adopt the Official Plan and make the Bylaw are therefore, quite distinct from those decisions undertaken by a municipality where it decides to rezone a parcel of land or amend its bylaw. Typically, municipal bylaws specifically provide for zoning and bylaw amendments by application. The Commission is of the opinion that decisions made under a specific bylaw provision are clearly made by a municipality in the administration of its existing bylaw and, as such, are appealable to the Commission under Section 28 of the Planning Act. In these cases, the Commission will also consider the implications for the official plan. The Commission and its predecessor, the Land Use Commission, have a long-standing history of considering such matters.

In arriving at its decision, the Commission examined, among other things, the law which existed prior to amalgamation and the transitional provisions which bridged the old official plans and bylaws of the former municipalities with the new regime.

The Charlottetown Municipalities Act R.S.P.E.I. 1988, Cap. C-4.1 gives some guidance in this matter wherein Schedule 3, subsection 2(d) sets out the transitional provisions for the City of Charlottetown, including the provision that … all bylaws made and having effect … shall continue to have effect until they are revoked or others are made in their stead.

According to the documents filed by the City, on July 26, 1999 the City Council passed a resolution that the City of Charlottetown adopt the City of Charlottetown Official Plan dated July 1999 and repeal the existing Official Plans as follows:

Charlottetown Development Plan

East Royalty Official Plan

Hillsborough Park Official Plan

Sherwood Official Plan

West Royalty Official Plan

Winsloe Official Plan

Parkdale Official Plan

effective the date of Ministerial approval of the Zoning and Development Bylaw.

On July 28, 1999 the City passed a resolution to approve the City of Charlottetown Zoning and Development Bylaw. Contained within the Bylaw are the provisions of subsection 1.2 which states that the provisions of the bylaws in the former municipalities which now comprise Charlottetown, are hereby repealed.

On August 25, 1999 the Minister of Community Services and Attorney General approved pursuant to Section 14 of the Planning Act, the Official Plan and pursuant to Section 17 of the Planning Act, the Bylaw.

In considering all of this, the Commission is of the opinion that there clearly has been a revocation of what previously existed in the way of official plans and bylaws, and that the City has adopted a new Official Plan and made a new Bylaw – and the statutory authority to do so is under the provisions of the Planning Act. As such, the Commission finds these not to be decisions in respect to the administration of bylaws, but decisions made pursuant to other specific provisions of the Planning Act. The Commission therefore concludes that as these decisions are not of the nature contemplated under the provisions of Section 28 of the Planning Act, they are ultra vires the Commission's jurisdiction.

So that the conclusion arrived at herein is clear, the Commission hastens to reiterate its previous position that a dissatisfied person does have the right to appeal a decision by Council to approve or deny a rezoning or bylaw amendment because that is a decision of Council in the administration of the Bylaw. Contrary to that situation, what the Commission has found in this case is that the City developed a new Official Plan and Bylaw pursuant to statutory authority and these decisions are not appealable to the Commission.
The Minister's Decisions

The Minister's decisions to approve the Official Plan and Bylaw were made respectively pursuant to subsection 14(2) and Section 17 the Planning Act.

Subsection 14(2) states:
14(2) Following the adoption of the official plan by the Council, the plan

…

(b) shall be submitted to the Minister for approval….

Section 17 states:
17 The bylaws shall be subject to the approval of the Minister and shall be effective on the date of approval by the Minister.

The Commission finds that the decisions by the Minister were not made in the administration of the regulations of the Planning Act, rather they were made pursuant to subsection 14(2) and Section 17 of the Planning Act. The Commission therefore has no jurisdiction to hear appeals of these decisions.

4. Disposition

An Order finding that the Commission is without jurisdiction to hear these appeals will therefore be issued.

Order

WHEREAS Arthur Jennings, Philip Wood, the Board of Governors of St. Dunstan's University, Superior Properties and Rentals Inc. and Superior Sanitation Services Inc., and D. Ron Burke, have appealed certain decisions by the Municipal Council of the City of Charlottetown and the Minister of Community Services and Attorney General;

AND WHEREAS the Commission received written submissions and heard arguments on a preliminary matter at a public hearing conducted after due public notice in Charlottetown on December 22, 1999;

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 is without jurisdiction to hear these appeals.

DATED at Charlottetown, Prince Edward Island, this 11th day of January, 2000.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Norman Gallant, 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    An Act to Amend the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1994, Cap. 29.   An Act to Amend the Planning Act, R.S.P.E.I. 1994 Cap. 46.