Order LA00-02 - LA99015 - Planning Appeal - James Andrew v. Minister of Community Services and Attorney General (Jan. 27/00)

Docket LA99015
Order LA00-02

IN THE MATTER of an appeal by James Andrew pursuant to Section 28 of the Planning Act.

BEFORE THE COMMISSION
on Thursday, the 27th day of January, 2000.

Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner

Order

WHEREAS James Andrew (the Appellant) made a request on May 25, 1999 for the Department of Community Services and Attorney General (the Respondent) to conduct a site suitability assessment to approve a variance pursuant to Sections 18 and 21 of the Environmental Protection Act On-Site Sewage Disposal Regulations;

AND WHEREAS on July 5, 1999 the Appellant was advised by the Respondent that approval was denied;

AND WHEREAS on July 26, 1999 the Appellant appealed this decision to the Island Regulatory and Appeals Commission (the Commission). The Notice of Appeal was subsequently amended October 28, 1999;

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 on July 27, 1999 the Commission advised all parties of a preliminary matter as to whether the Commission had the jurisdiction to hear the appeal. The Commission invited written comments from each party on this matter;

AND WHEREAS the Appellant filed a written submission contending that the Commission has the jurisdiction to hear this appeal;

AND WHEREAS the Respondent filed a written submission contending that the Commission does not have the jurisdiction to hear this appeal;

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

AND WHEREAS having considered all of the arguments advanced by both parties, it is the Commission's opinion that the decision to deny the Appellant's request for approval of a variance pursuant to Sections 18 and 21 of the Environmental Protection Act was a decision pursuant to the Environmental Protection Act and not a decision in respect of the administration of regulations made pursuant to the provisions of the Planning Act;

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

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

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 this appeal.

DATED at Charlottetown, Prince Edward Island, this 27th day of January, 2000.

BY THE COMMISSION:

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.