Docket: LA01002
Order LA01-07

IN THE MATTER of an appeal by Mark Hatfield against a decision of the Minister of Community and Cultural Affairs, dated February 22, 2001.

BEFORE THE COMMISSION

on Friday, the 21st day of December, 2001 .

 Ginger Breedon, Chair
James Carragher, Commissioner
Kathy Kennedy, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant

Mark Hatfield

2.    For the Respondent

Don Walters
Niall MacKay

3.    For the Developer

Julius Patkai

Reasons for Order

1.  Introduction

This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) by Mark Hatfield (the Appellant) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Act).

According to the Notice of Appeal (Exhibit A1) dated March 9, 2001 and other evidence before the Commission, the Appellant is appealing the decision of the Minister of Community and Cultural Affairs (the Respondent), dated February 22, 2001, to issue building permit K-08-2001 to Island Quality Vegetables Inc. (the Developer) to construct an addition to the existing vegetable processing plant on parcel number 861484 located in Commercial Cross (the development).

The parties entered into an Agreement to Participate in Mediation (Exhibit C2) on May 8, 2001.  Mediation sessions were held at the Commission's offices on May 8, 2001 and May 24, 2001.  Negotiations continued through the summer and early autumn of 2001.  Despite their best efforts, the parties were unable to reach an agreement.

After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the appeal on December 4, 2001.

2.  Discussion
The position advanced by the Appellant

The Appellant states that he lives across the road from the development.  He notes in his Notice of Appeal (Exhibit A1) that he has great concerns as to noise, increased traffic and the visual appearance of the development.  He further submits that the addition to the plant protrudes and serves to angle and direct sound toward his home, resulting in a detrimental impact to his family.

The Appellant notes that the actual size of the addition is more like 100 feet by 40 feet, not 55 feet by 40 feet as specified in the Application for Development Approval (Exhibit R2).  He further points out that Exhibit R2 shows a 30-foot tree buffer that does not exist.  Exhibit R2 also indicates that there would be 95 feet between the edge of the addition nearest the highway and the center of that same highway; however, following the completion of the addition, this distance actually measures 91 feet.

The Appellant testified that the development has a loading area in its front yard.  He submits that subsection 39(4) of the Planning Act Subdivision and Development Regulations (the Regulations) require a setback of 150 feet from the edge of the right of way where there is a loading area in the front yard.

The Appellant acknowledged that the Developer has instituted some changes.  However, the Appellant notes that these changes, some of which are ineffective, came about as a result of the Appellant “fighting tooth and nail” with the Developer. He states that the Developer was unwilling to cooperate until the Department of Fisheries, Aquaculture and Environment became involved and the mediation process commenced. 

The Appellant wants the Developer to follow its May 1998 Project Proposal (Exhibit A2).  The Appellant is seeking a “viable and workable solution” to limit the noise emitting from the development. 

 The Appellant requests that the Commission allow his appeal and order that “some sort of buffer” is required to limit the noise problem.

The position advanced by the Respondent 

The Respondent notes that there are several other commercial/light industrial business, including the Appellant's business, in the area surrounding the development.

While the Respondent did consider detrimental impact before issuing the building permit, the definition of detrimental impact under clause 1(f.3) of the Regulations does not apply where a development is approved pursuant to subsection 9(1) of the Environmental Protection Act, R.S.P.E.I. 1988, Cap. E-9.  The Respondent states that the development was approved under section 9 of the Environmental Protection Act, as noted in a letter from the Minister of Fisheries, Aquaculture and Environment to the Developer dated February 20, 2001 (part of Exhibit R8).  This letter outlines two environmental conditions for the addition, both of which are concerned with processing wastewater. 

The primary concern for the Respondent when reviewing the development is to ensure that it met the required setbacks.  The actual size of the addition was not measured.  The Respondent acknowledges that, given the reported discrepancy between the actual size of the addition and the size of the addition indicated on the Application for Development Approval (application), the Developer will be required to resubmit the application. 

The Respondent submits that, while the application stated that the development would be 95 feet from the center line of the road, subsection 39(1) of the Regulations requires that the development be at least 83 feet from the centerline of the road.  Therefore, based on the Appellant's measurement of 91 feet, subsection 39(1) of the Regulations was met.  Subsection 38(1) of the Regulations requires side and rear yard setbacks of at least 15 feet from the property line.  This subsection was also met.

Subsection 39(4) of the Regulations applies to loading doors that face the highway.  The intention of this subsection is to provide sufficient space within the front yard to allow trucks to turn safely and back up to the loading doors without backing up from the highway. The 150-foot setback is not required in situations where the trucks are able to come in, turn and load or unload parallel to the highway.  With this development, subsection 39(4) is not an issue because the trucks are able to load and unload without having to back up from the highway.

The building permit (Exhibit R9) contains conditions, including environmental approval and a requirement that no portion of the structure can be closer than 50 feet to the front property line.  The Developer has met all these conditions.

The Respondent requests that the Commission dismiss the Appellant's appeal, as the Act and its Regulations were reviewed and applied appropriately prior to the issuance of the building permit.

 The position advanced by the Developer

The Developer wishes to operate in harmony with the surrounding community.  As a result of site preparations in 1998 for the main portion of the plant building, the originally identified tree buffer had to be narrowed.  To address concerns about noise, the Developer installed a 10-foot high, 180-foot long berm in front of the plant in 2001.  Other steps were taken as well to address the noise concerns and improve the visual appearance of the plant.  The Developer is presently evaluating future expansion plans that would result in a relocation of most noise creating activity farther away from the Appellant's home.

The Developer acknowledges that it will have to resubmit an application for a building permit, as the actual size of the addition is significantly larger than stated on the application.

 The Developer requests that the Commission dismiss the Appellant's appeal.

3.  Findings

After giving careful and full consideration to the evidence submitted in this case, and upon a review of the applicable law, it is the decision of the Commission to allow the appeal and revoke building permit K-08-2001.  The reasons for the Commission's decision follow.

The Commission, as an appellate body, has the same decision making power as the decision maker at first instance, in this case the Minister of Community and Cultural Affairs (the Respondent).  However, in exercising this power, the Commission, as a creature of statute, does not have absolute powers and is bound by the law; that is to say the Act and the Regulations. The Commission therefore has the power to hear the evidence and arguments as presented by the parties and to decide whether to allow the appeal or dismiss it, based on the evidence and arguments presented and within the scope of the law. 

The Commission notes that some of the Appellant's concerns in this case regarding noise and traffic relate to the processing plant as a whole. The Commission's jurisdiction in this case is, however, limited to the appeal of the approval of building permit No. K-08-2001, which involves an addition to the existing processing plant. 

Subsection 28.(1) of the Act sets out the nature of an appeal to the Commission under the Act: 

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.

 Subsection 28.(2) of the Act prescribes a curtailment of the right to appeal: 

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.

There is no evidence before the Commission that the Lieutenant Governor in Council has issued an Order pursuant to subsection 28.(2) of the Act. 

In considering the Appellant's concerns with setbacks for the addition to the existing building, the Commission notes that subsection 39.(1) of the Regulations establishes the minimum setback of a building or development from a highway or a public road: 

39.(1)    No person shall locate a building or development closer than the following distances to a highway or public road: 

(a)     along any arterial highway, collector highway, local highway, or seasonal highway, 83 feet (25.3 metres) to the center line of the highway or 50 feet (15.2 metres) to the highway boundary, whichever is greater; 

. . .

Given the Appellant's unchallenged evidence that the distance between the center line of the highway and the portion of the addition nearest to the highway measures 91 feet, the Commission is satisfied that the required minimum setback under subsection 39.(1) has been met. 

The Commission also notes that subsection 39.(4) of the Regulations read as follows: 

(4)    Where a loading space is proposed in the front yard of a repair shop, store, warehouse or any other commercial or institutional building, the building shall have a minimum setback of 150 feet (45.7 metres) from the edge of the right-of-way. 

Upon hearing the Respondent's explanation of the intent of subsection 39.(4), and upon reviewing a drawing of the plant site (made on a flip chart by the Appellant and the Developer during the course of the hearing)  (Exhibit A10), the Commission accepts the Respondent's interpretation of subsection 39.(4).  The Commission determines that the requirements of subsection 39.(4) are not applicable in this case, given the layout of the entrance and loading/unloading areas for this development. 

The Commission notes that neither the Respondent, nor the Developer, disputed the Appellant's evidence concerning the actual size of the addition. Absent evidence to the contrary, the Commission finds that the addition measures 100 feet by 40 feet. 

The Commission is very concerned that the Developer applied for a 55-foot by 40-foot addition, yet the Developer proceeded to construct a substantially larger addition measuring 100 feet by 40 feet without contacting the Respondent to request an amended permit based on these changed dimensions.  The Commission notes the wording of the opening paragraph of the building permit (Exhibit R9): 

Permit No. K-08-2001 

Permission is hereby granted to Island Quality Vegetables applicant thereof, to Construct an Addition to Existing Plant on Provincial Parcel Number(s) 861484 and located on the East side of Route #4 in the community of Commercial Cross according to the plans and information submitted, and by me tentatively approved, subject to compliance with the provisions of all regulations under “The Planning Act,” governing and affecting the development. (emphasis added)

The Commission finds that the Respondent appropriately applied the Act and Regulations when it initially issued building permit K-08-2001.  In the Respondent's role of administering the Regulations, it is prudent to ensure that the building permit has been complied with.  The Respondent, however, did not verify that the actual size of the addition complied with the size stated on the application for development approval.  In this case it did not, and did not in a very substantial way. 

The Commission is also concerned as to how the Minister of Fisheries, Aquaculture and Environment can properly evaluate the development under subsection 9.(1) of the Environmental Protection Act if the actual construction of the development does not follow the approved specifications set out in the application for the building permit.  The Commission finds that there is an onus on the Developer to file an accurate application with the Respondent, and if the specifications later need to be changed, to promptly inform the Respondent of these desired changes and seek approval prior to proceeding with these altered specifications. 

While this is important for all aspects of the approval process, it is particularly important where an environmental evaluation is required under the Environmental Protection Act.  In these cases, if the evaluation is carried out on the basis of the specifications in the application and the subsequent construction is different than the submitted specifications, the environmental evaluation can clearly be seriously compromised with related negative and unforeseen impacts on the environment, including the environment of surrounding land uses and neighbors. 

Section 33. of the Regulations reads as follows: 

33.(1)    A development permit shall be valid for a period of 24 months from the date of issue. 

    (2)    Notwithstanding subsection (1), a development permit may be revoked or altered within 24 months of the date of issuance or extension if construction has commenced in a location or manner contrary to the application or these regulations. 

In this case, the changed development appears to have met the setback requirements set out in the Regulations but the Developer did not abide by the plans and information submitted with the application.  As a result, it is not possible to be similarly confident that the environmental impacts have been properly evaluated, given the fact that the final ‘in place development' is not the proposed development that was evaluated prior to the issuance of the building permit. 

While the Commission understands that the Respondent may not have the necessary resources to ensure that every development or building permit is fully complied with, this does not lessen the importance of ensuring such compliance. 

It is now well settled law that an appeal under the Act takes the form of a hearing de novo.  The Commission has the legal authority, after holding a hearing and considering the submissions of the affected parties, to make a decision by placing itself in the role of the original decision maker. 

The Commission has determined that building permit K-08-2001 is revoked under the provisions of subsection 33.(2) of the Regulations and, consequently, the appeal is allowed. 

In making this decision, the Commission is aware that the Developer may submit a new application for development approval to the Respondent, specifying the ‘as built parameters' of the development.

4.  Disposition

An Order will therefore be issued revoking building permit K-08-2001.

Order

WHEREAS Mark Hatfield has appealed a February 22, 2001 decision by the Minister of Community and Cultural Affairs to issue building permit K-08-2001 to Island Quality Vegetables Inc. for expansion of a building on parcel # 861484 located in Commercial Cross;

AND WHEREAS following attempts to mediate the matter, the Commission heard the appeal at a public hearing conducted in Charlottetown on December 4, 2001 after due public notice;

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 appeal is allowed and building permit K-08-2001 is hereby revoked.           

DATED at Charlottetown, Prince Edward Island, this 21st day of December, 2001.

BY THE COMMISSION:

Ginger Breedon, Chair

James Carragher, Commissioner

Kathy Kennedy, 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.