Order LA00-03 - LA99028 - Planning Appeal - LA99028 - Caseley - Request for Review of Order LA99-13 (Feb. 10/00)

Docket: LA99028
Order: LA00-03

IN THE MATTER of a Request for Review by Doris Caseley of Commission Order LA99-13.

BEFORE THE COMMISSION

on Thursday, the 10th day of February, 2000.

Wayne Cheverie, Chair
Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition
Order

Appearances & Witnesses

Written submissions were filed by:

1. For the Appellant

    Errol Caseley

2. For the Municipal Council of Cavendish

    No Submission Made

3. For the Developers

    No Submission Made

Reasons for Order

1. Introduction

This is a Request for Review of Commission Order LA99-13 pursuant to Section 12 of the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988, Cap. I-11, by Doris Caseley (the Appellant).

On September 23, 1999 the Municipal Council of Cavendish (the Respondent) issued building permit #99-C-52 to Scott Lowther and Sandi Lowther (the Developers) for provincial parcel #232330 located in Cavendish.

On October 18, 1999 the Commission received a Notice of Appeal from Doris Caseley, against a decision by the Respondent to issue permit #99-C-52. The appeal was filed with the Island Regulatory and Appeals Commission (the Commission) pursuant to Section 28 of the Planning Act.

On December 16, 1999 the Commission issued Order LA99-13 and decided that the Commission is without jurisdiction to hear the appeal because the 21 day period for filing an appeal was not met.

By letter dated December 30, 1999, Errol Caseley, on behalf of the Appellant, requested that the Commission review Order LA99-13. This request was sent to the Community and to the Developer for consideration. The Community and the Developer did not make any submissions on this matter.

2. Discussion

In the letter to the Commission dated December 30, 1999, Errol Caseley, on behalf of the Appellant states:

The reasons why it was difficult to meet the deadline for filing an appeal were set out in the appeal and are enclosed again.

In the letter to the Commission dated November 18, 1999 which was attached, Mr. Caseley, on behalf of the Appellant stated 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.

The Commission considered the November 18, 1999 letter before Order LA99-13 was decided and issued.

3. Findings

The Commission's authority for reviewing a decision is set out pursuant to Section 12 of the Island Regulatory and Appeals Commission Act, which states:

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.

The Commission has considered in the past the minimum criteria an Applicant must meet before the Commission will exercise its absolute discretion in the matter of reviewing its decisions under s. 12 of the Island Regulatory and Appeals Commission Act. This test has been interpreted consistently by the Commission in its past decisions.

As noted in previous decisions, the onus rests upon the Applicant to show that a prima facie case exists or evidence exists which is sufficient to entitle the Applicant to the review. A prima facie case will be shown only where the function of review should be exercised to correct an error of the Commission or to meet changed circumstances.

Changed circumstances may encompass either a situation which has developed after the decision or where new evidence emerges which was not known or not available at the time the original evidence was adduced. Changed circumstances will dictate a review only if they are material.

The Commission has considered the Request for Review filed by Mr. Errol Caseley on behalf of his mother Doris Caseley dated December 30, 1999.

The Commission finds that the issues raised in Mr. Caseley's Request for Review on behalf of the Appellant are the same issues which were raised on November 18, 1999 and considered by the Commission before the Commission issued Order LA99-13. As such, the Appellant has advanced no new evidence nor has she suggested that there has been any significant change of circumstances which would justify a review. Furthermore, Mr. Errol Caseley's Request for Review on behalf of the Appellant does not raise any procedural deficiency or breach of the rules of natural justice on the appeal hearing, nor any other matter which would justify a review.

4. Disposition

The Commission does not believe there are sufficient grounds in this case to support a review. Accordingly, the Commission denies the Appellant's Request for Review.

Order

WHEREAS the Commission issued Order LA99-13 with reasons on December 16, 1999;

AND WHEREAS by written notice dated December 30, 1999 Errol Caseley, on behalf of his mother Doris Caseley (the Appellant), requested the Commission review this decision;

AND WHEREAS written submissions were requested from the Respondent and Developers by January 21, 2000;

AND WHEREAS a review may be carried out pursuant to the provisions of Section 12 of the Island Regulatory and Appeals Commission Act;

NOW THEREFORE, for the reasons given in the attached findings and pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act,

IT IS ORDERED THAT

1. The Commission denies the Appellant's Request for Review.

DATED at Charlottetown, Prince Edward Island, this 10th day of February, 2000.

BY THE COMMISSION:

Wayne Cheverie, Chair
Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner