Docket LA98018
Order LA99-02IN THE MATTER of a Request for Review by Sterling R. MacKay of Commission Order LA99-01.
BEFORE THE COMMISSION
on Thursday, the 25th day of February, 1999.
Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner
Mary Burge, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & WitnessesWritten submissions were filed by:
1. For the Appellant
Sterling R. MacKay
2. For the Minister of Community Services
No Submission Made
Reasons for Order
1. Introduction
This is a Request for Review of Commission Order LA99-01 pursuant to Section 12 of the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988, Cap. I-11, by Sterling R. MacKay (the Appellant).
On July 31, 1998 the Appellant applied for development approval to relocate a cottage from Brighton to Lakeside (parcel number 177337).
By letter dated November 9, 1998, the Appellant was advised by the Department of Community Services (the Department) that pursuant to Sections 28 and 33 of the Planning Act, R.S.P.E.I. 1988 Cap P-8 (the Act) Coastal Area Regulations, the Appellant's application for a permit was denied.
On November 25, 1998 the Appellant appealed the decision of the Minister not to issue a building permit for the relocation of the cottage. That appeal was filed with the Island Regulatory and Appeals Commission (the Commission) pursuant to Section 28 of the Planning Act and, after due public notice, the Commission heard the appeal on January 19, 1999 in Charlottetown.
On January 28, 1999 the Commission issued Order LA99-01 and denied the appeal with reasons summarized as follows:
…Based on the evidence that the lot contains primary and secondary sand dunes and that the proposed location of the cottage would necessitate some infilling of a portion of a wetland area, the Commission finds that the property cannot satisfy the requirements of Sections 28 and 33 of the Planning Act Coastal Area Regulations and, therefore, the Minister cannot issue a building permit pursuant to Section 12 of the Regulations.
…
(Excerpt from page 4 of Order LA99-01)
By letter dated February 1, 1999, the Appellant requested that the Commission review Order LA99-01. This request was sent to the Department for consideration. The Department made no submission on this matter.
2. Discussion
In the letter to the Commission dated February 1, 1999, the Appellant states:
…It is my opinion that the evidence used by Rosemary Curley did not give a true account of the situation existing on the proposed lot. Further the examination made by Niall MacKay on 12 August 1998 was made on a rainy morning, and if he saw wetness it was to be expected from a rainy day.
As I would like to have a fair hearing on this matter I request a Request for Review. The reason being as stated above, and further a re examination after the winter and spring water has settled and normal conditions exist at Lakeside.
…
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 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. MacKay on February 1, 1999.
The Commission finds the issues raised in Mr. MacKay's Request for Review are restatements of issues which were substantially discussed by all parties during the original appeal hearing. Mr. MacKay has advanced no new evidence nor has he suggested that there has been any significant change of circumstances which would justify a review. Furthermore, Mr. MacKay's request for review 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 LA99-01 with reasons on January 28, 1999;AND WHEREAS
by written notice dated February 1, 1999 Sterling R. MacKay requested the Commission review this decision; 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 THAT1. The Commission denies the Appellant's Request for Review.DATED at Charlottetown, Prince Edward Island, this 25th day of February, 1999. BY THE COMMISSION:Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner
Mary Burge, Commissioner
NOTICESections 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.
