dissenting:
The legislature has given the right of review to four separate classes of persons: Any party to a Board hearing, any person whose complaint has been denied, any person who has been denied a permit or variance, and any party adversely affected by a final order or determination of the Board. I believe that petitioners herein qualify under the last category.
Supreme Court Rule 335 governs the procedure to be followed in a review of the instant cases. The Rule expressly adopts Supreme Court Rule 301 (Supreme Court Rule 335 (h) (1) which supplanted former sections 74, 76 ( 2), and 80 of the Civil Practice Act. Rule 301 provides in part “* ” * All rights that could have been asserted by appeal or writ of error may be asserted by appeal * * The committee comments thereto state that the quoted portion “is intended to incorporate and restate the provisions of the last two sentences of Secion 74 (1).” The last two sentences of former Section 74 (1) (Ill. Rev. Stat. 1963, ch. 110, sec. 74 (1) ) had provided “* * * The right heretofore possessed by any person not a party to the record to review a judgment or decree by writ of error is preserved by notice of appeal.”
Cases interpreting the verbiage contained in Section 74 (1) have held that a person, not a party to the record, is entitled to appeal a judgment if he has been injured by such judgment or would be benefited by its reversal. In the prosecution of such appeal, his interest in the proceedings must appear in the record or be alleged in the points relied upon for reversal. A notice of appeal is a part of the record. People v. Kennedy (1937), 367 Ill. 236, 238. Also see, Grennan v. Sheldon (1948), 401 Ill. 351, 356, Nott v. Wolff (1960), 18 Ill.2d 362, 366 and Vece v. DeBiase (1964), 31 Ill.2d 542, 544-545.
The petitions for review, which act as notice of appeals in the instant cases, allege that the petitioners were injured by the Board’s order and that they will be benefited by its reversal.
Contrary to the majority view, I conclude that the phrase, “Any party adversely affected by a final order of the Board” includes the petitioners herein, that their petitions show sufficient interest as do their points relied upon for reversal. I would not dismiss the complaints, but dispose of them upon their merits.
I, therefore, dissent.
Subsequent to submission of the above dissent but prior to its filing, the majority opinion was revised by adding the four paragraphs preceding the last paragraph.
The majority admits that the Act is “apparently intended to extend the right of judicial review to an additional class of parties who are not parties to the Board hearing” but reasons that the legislature did not mean what it said “because we believe it conflicts with existing provisions and interpretations of the Administrative Review Act.” Under this type of rationale we could also decide that a direct appeal to this Court, as provided by the Act, is not permissible “because # # it
conflicts with existing provisions and interpretations of the Administrative Review Act.” See, Ill. Rev. Stat. 1969, ch. 110, sec. 268 where it is provided that review of final administrative decisions is vested in the Circuit Courts.
The Environmental Protection Act is a new approach toward solving one of society’s many problems. Some of the procedures are new, e.g., direct appeal to this Court from the Board’s action; however, protection of the basic rights of individuals has not changed. The legislature was cognizant of this fact when it added the last category to include the petitioners herein; otherwise there would be no necessity for its inclusion.
I, therefore, adhere to my dissent.