Order LA00-09 - Planning Appeal - S. Montgomery Drummond v. Resort Municipalitiy of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico (Sept. 26, 2000)

Docket: LA00112
Order: LA00-09

IN THE MATTER an appeal by S. Montgomery Drummond against a decision by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated July 24, 2000.

BEFORE THE COMMISSION

on Tuesday, the 26th day of September, 2000.

Ginger Breedon, Vice-Chair
Maurice Rodgerson, Commissioner
Norman Gallant, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant (S. Montgomery Drummond)

S. Montgomery Drummond

2.    For the Respondent (Resort Municipality)

Arnold Smith

Reasons for Order

1.  Introduction

This is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. P-8, by S. Montgomery Drummond (the Appellant).

According to the evidence submitted in this matter, on June 14, 2000 the Appellant made application (Exhibit R4) to the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish, and North Rustico (the Respondent) to construct four, one-story rental cottages on provincial property number 232892.
The Respondent notified the Appellant by letter dated July 24, 2000 (Exhibit R2) that this application was denied.

By notice of appeal dated July 27, 2000 (Exhibit A1) the Appellant appealed this decision to the Island Regulatory and Appeals Commission (the Commission).

By letter dated August 9, 2000 (Exhibit R1), the Respondent raised a preliminary matter with respect to whether the Commission had the jurisdiction to hear this appeal. The Appellant filed a written response to this preliminary matter on August 23, 2000 (Exhibit A2).

After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear argument on the preliminary matter on September 20, 2000.

This decision relates to preliminary matters only.

2. Discussion

The position advanced by the Respondent

The Respondent submits that the Commission does not have jurisdiction to hear this appeal because the Respondent was upholding the Environmental Protection Act R.S.P.E.I. 1988 Cap. E-9, when it made the decision to deny the Appellant's application for a development permit.

According to the Respondent's letter to the Commission dated August 9, 2000 (Exhibit R1), the Appellant cannot meet the Provincial requirements for being allowed to develop his property based on two factors. The first factor is that the Appellant cannot meet the requirements of the Sewage Disposal Regulations of the Environmental Protection Act which only permits a sewage holding tank for the following: 1) the sewage disposal system servicing an existing facility malfunctions, and 2) no practical alternative system can be installed for treatment and disposal of wastewater. The second factor is that, notwithstanding the above, this parcel of land does not conform with the minimum lot sizing standards under either the municipal Bylaws or the Provincial Regulations.

The Respondent explained that as a courtesy and as an assistance to applicants applying for development permits, it usually forwards information contained in a development permit application to the appropriate government departments for their consideration. The Appellant's application was processed in this manner.

In considering such applications, the Respondent submits that it must follow its own municipal Bylaws[1] as well as all applicable Provincial Acts and Regulations when considering an application for a development permit. The Respondent submits that the Appellant's application did not meet its Bylaws and the Environmental Protection Act Regulations; therefore the Respondent felt it had no choice but to deny the Appellant's application for a development permit. The Respondent further notes that in the case of the Environmental Protection Act Regulations, the municipality is simply the “messenger”.

For these reasons the Respondent submits that the Commission does not have jurisdiction to hear this appeal.

The position advanced by the Appellant

The Appellant submits that the Commission does have jurisdiction to hear this appeal.

The Appellant states that he applied to the Respondent for a development permit and notes that the Respondent ultimately denied this application. The Appellant submits that, as it was the Respondent that denied his application, the Respondent should be responsible for its decision, and the Commission should therefore hear the appeal.

3. Findings

On the issue of whether the Commission has the jurisdiction to hear this appeal, the Commission notes subsection 28(1) of the Planning Act 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 Commission therefore has the authority and is duly bound to hear appeals by any person dissatisfied by a decision made by a council in respect of the administration of Bylaws made pursuant to the powers conferred by the Planning Act. An exception to this is prescribed by subsection 28(2) which states:

…

28. (2) Where the Lieutenant Governor in Council has by order declared that

(a)          a development for which approval is required under the Environmental Protection Act has met all the requirements of that Act and written approval has been given; and

(b)         the right of appeal to the Commission in respect of that development should be curtailed,

subsection (1) has no application and there is no right of appeal to the Commission in respect of a decision on that development.

In the present case, the Commission is not aware of any order issued by the Lieutenant Governor in Council to curtail the right of appeal with respect to this development. In addition, subsection 28(2) only concerns the curtailment of an appeal when a development is approved under the Environmental Protection Act. By contrast in the present case, the Appellant has indicated that he is appealing the Respondent's decision to deny a development permit.

The Respondent argues that the Commission does not have the jurisdiction to hear this appeal because the Respondent was simply upholding matters within the scope of the Environmental Protection Act and its Regulations, namely sewage disposal.

The Commission is of the view that it does not have jurisdiction to hear an appeal under the provisions of the Environmental Protection Act. However, it also believes there is a significant distinction between an appeal advanced solely on the basis of a decision made under the Environmental Protection Act and one which involves a decision made in respect of the administration of bylaws or regulations made pursuant to the powers conferred by the Planning Act.

In this case, upon review of the Bylaw, it would appear that the Respondent, in part, relies on the provisions of subsection 4.8 which states:

4.8 Where a development requires the installation of an on-site sewage disposal system, Council shall require that the developer first obtain a permit for the sewage disposal system from the P.E.I. Department of Community Services or Environment prior to issuing a development permit.

However, the Commission is of the opinion that the provisions of subsection 4.1.1 of the Bylaw also provide the Respondent with the authority to approve or deny a permit for “b) …any “development” ” and “f) …any underground installation such as a septic tank…”, where a septic system is involved.

In the case now before the Commission, the evidence supports that the Appellant made an application for a development permit dated June 14, 2000 (Exhibit R4) to the Respondent – not the then Department of Technology and Environment. The Appellant subsequently was informed by a letter dated July 24, 2000 (Exhibit R2) from the Respondent, that the development permit was not approved.

Based on the evidence, the Commission finds that the decision to deny the Appellant a development permit is a decision by the Respondent's Council in respect of the administration of its Bylaws, made pursuant to the powers conferred to Council under the Planning Act.

For these reasons, the Commission finds that it does have the jurisdiction to hear this appeal.

The Commission will, therefore, hear, consider and decide the issues of this present case in accordance with the requirements and objects of the Bylaws and the Planning Act and its Regulations. This matter will now proceed to a hearing on the substantive matters of the appeal.
4. Disposition
An Order on preliminary matters will therefore be issued.

[1] Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico – Zoning & Subdivision Control (Development) Bylaw.

Order

WHEREAS S. Montgomery Drummond has appealed a decision made by the Resort Municipality on July 24, 2000;

AND WHEREAS the Respondent raised a preliminary matter and questioned whether the Commission has the jurisdiction to hear this appeal;

AND WHEREAS a hearing was held to hear argument on this preliminary matter on September 20, 2000

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 has the jurisdiction to hear this appeal;

2. The Commission will proceed to hear the substantive matter of this appeal forthwith.

DATED at Charlottetown, Prince Edward Island, this 26th day of September, 2000.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair

Maurice Rodgerson, Commissioner

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.