Order LA02-07 - Planning Appeal - Hazelbrook v. Minister of Community and Cultural Affairs (December 18/02)

Docket: LA02010
Order LA02-07

IN THE MATTER of an appeal by Rick Christopher, on behalf of the Hazelbrook Community Council, against a decision of the Minister of Community and Cultural Affairs dated August 26, 2002.

BEFORE THE COMMISSION

on Wednesday, the 18th day of December, 2002.

Maurice Rodgerson, Vice-Chair
Weston Rose, Commissioner
Anne Petley, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant

Rick Christopher
Kelly Mullaly
Doug Jenkins

2.    For the Respondent

Don Walters
Robert MacNevin, Counsel

3.    Members of the Public

Ernest Mutch

Reasons for Order

1.  Introduction

[1]  This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) by Rick Christopher, on behalf of the Hazelbrook Community Council (the Appellant), under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Planning Act).

[2] According to the Notice of Appeal (Exhibit A1) dated September 16, 2002 and other evidence before the Commission, the Appellant is appealing the decision of the Minister of Community and Cultural Affairs (the Respondent), dated August 26, 2002, to issue Permit No. C-334-2002 to grant permission to Maintenance Services Ltd. (the Developer) to place a site trailer and weigh scales on Provincial Property Number 882738 (the subject property) located on Route #1 in the community of Hazelbrook.

[3] After due public notice and suitable scheduling for the three involved parties, the Commission proceeded to hear this appeal on November 20, 2002.

[4] The Developer, although a party to the appeal, was not represented at the hearing.

2.  Discussion

[5] The Appellant provided written grounds of appeal in the form of a September 16, 2002 letter to the Commission which is attached to the Notice of Appeal. At the hearing, the Appellant relied on these written submissions and orally emphasized the following points for the Commission's consideration:

The subject property was used as a shale excavation pit for many years, dating back to at least the 1960s. In March 1998, the Department of Environment began to issue permits to allow the Developer, or related individuals or companies, to deposit demolition debris.

On December 1, 1999, subdivision of the subject property was approved for “Light Industrial use only” (Exhibit R16). The Appellant questions the legality of this approval as a definition of “light industrial” did not exist in the Planning Act or its regulations at that time.

In January 2002, the Developer applied to the Department of Environment to utilize the subject property as a registered construction and demolition disposal site. On July 10, 2002, the Minister of Fisheries, Aquaculture and Environment issued a Permit to Operate a Construction and Demolition Disposal Site (Exhibit A5). The Appellant submits that this amounted to a change of use and an entranceway permit would therefore be required, yet there is no evidence that an entranceway permit was ever issued by the Department of Transportation and Public Works.

With respect to the present appeal, the placement of a site trailer and weigh scales on the subject property will lead to an intensification of use and therefore result in a detrimental impact on the community, as this will allow the Developer not only to dispose of its own construction and demolition waste, but also facilitates the acceptance of such waste from other companies and individuals on a fee basis.

The site does not currently have a clay liner and inappropriate waste is currently being dumped at the subject property, as evidenced by the photographs contained in Exhibit A9.

[6] The Appellant requests that the Commission rescind Permit No. C-334-2002 and order the removal of the site trailer and weigh scales.

[7]  The Respondent notes that the present appeal is limited to the issuance of Permit No. C-334-2002 to allow the placement of a site trailer and weigh scales on the subject property. The Permit to Operate a Construction and Demolition Disposal Site was issued under section 25 of the Environmental Protection Act (EPA). This matter is presently under judicial review, as the Commission does not have the jurisdiction to hear an appeal of permits issued under the EPA. The Respondent submitted the following in response to the Appellant's submissions:

At the time of the subdivision application in 1999, the issue of highway access was forwarded to the Department of Transportation and Public Works for a determination pursuant to the Roads Act Highway Access Regulations. While the subject parcel did front on an arterial highway, it was determined that there was no change of use, and therefore the Department of Transportation and Public Works did not require an entranceway permit.

While in 1999 “light Industrial” was not defined in the Planning Act or its regulations, the Respondent approved the subdivision for light industrial use, following the usual practice of the Department of Community and Cultural Affairs, in order to make it clear what category of use was permitted on the subject property and thus prevent heavy manufacturing on that site.

The subject property continues to be used for the same purpose now as it was in 1999, and as such, there has been no change of use. A change in name, from excavation pit to construction and demolition site, does not of itself constitute a change in use. Further, there is no measure of change in the intensity of use concerning the subject property.

The presence of weigh scales and a site trailer are appropriate uses on an industrial site.

[8] The Respondent requests that the Commission deny the appeal, as the decision to issue a permit for the placement of weigh scales and a site trailer on the subject property meets all the requirements of the Planning Act and its regulations.

[9]  Ernest Mutch, a member of the public, informed the Commission that his property borders the subject property. He notes that the site is very noisy, and he believes that his property value has diminished by $100,000 as a result. He submitted that the trailer and weigh scales facilitate the operation and detrimental effects of the construction and demolition site located on the subject property.

3.   Findings

[10] 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 deny the appeal. The reasons for the Commission's decision follow.

[11]  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 Planning 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.

[12]   The Commission notes that some of the Appellant's concerns in this case relate to the Permit to Operate a Construction and Demolition Disposal Site (Exhibit A5) which was issued pursuant to the Environmental Protection Act Prince Edward Island Waste Resource Management Regulations. The Commission has no jurisdiction to hear an appeal of a permit issued under the EPA or its regulations. Other concerns relate to the fact that no entranceway permit was required by the Department of Transportation and Public Works. Still another concern is the potential detrimental impact of the construction and demolition disposal site. While the Commission appreciates the detailed information provided by both the Appellant and the Respondent on these matters as a very helpful background, the Commission's jurisdiction in this case is limited to the appeal of the Respondent's decision to issue Permit No. C-334-2002 to grant permission to the Developer to place a site trailer and weigh scales on Provincial Property Number 882738.

[13]  Subsection 28.(1) of the Planning Act sets out the nature of an appeal to the Commission under the Planning 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.

[14]   With respect to the Appellant's contention that the placement of a site trailer and weigh scales on the subject property would lead to an intensification of use, the Commission finds that the evidence is insufficient to establish this point. While weigh scales may very well facilitate the levying of a fee on a per tonnage basis, a fee could also be implemented on a truckload basis, without utilizing weigh scales.

[15]   The Appellant also contends that the site trailer and weigh scales will result in a detrimental impact. In this regard, it is important to remember that the Commission does not have the jurisdiction to hear an appeal of the decision to issue a permit for the construction and demolition disposal site. The Commission's jurisdiction relates only to the permit to allow a site trailer and weigh scales to be placed on the subject property. It is one matter to argue detrimental impact as it relates to a construction and demolition disposal site per se. It is quite another matter to argue detrimental impact solely as a result of the placement of a site trailer and weigh scales. In fact, the presence of a site trailer, serving as an on site office, and the weigh scales, may assist in providing the data necessary to closely monitor the quantity of materials (expressed by weight) and type of materials (facilitated by detailed record keeping at an on site office) deposited on the subject property.   Accordingly, the Commission finds that the evidence does not support a finding that the site trailer and the weigh scales, by themselves, would result in a detrimental impact.

[16]   Upon a review of all the evidence, the Commission is satisfied that the Respondent correctly applied the Planning Act and its regulations, and did not err in issuing Permit No. C-334-2002, concerning the placement of a site trailer and weigh scales on Provincial Property Number 882738. Accordingly, the appeal is denied.

4. Disposition

(17) An Order denying the appeal will therefore be issued.

Order

WHEREAS Rick Christopher, on behalf of the Hazelbrook Community Council, has appealed a decision of the Minister of Community and Cultural Affairs, dated August 26, 2002;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on November 20, 2002 after due public notice and suitable scheduling for the involved parties;

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 hereby denied.

DATED at Charlottetown, Prince Edward Island, this 18th day of December, 2002.

BY THE COMMISSION:

Maurice Rodgerson, Vice-Chair

Weston Rose, Commissioner

Anne Petley, 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.