Order LA03-01 - Planning Appeal - Alan Roper v. City of Charlottetown (January 15, 2003)

Docket: LA00102
Order LA03-01

IN THE MATTER of an appeal by Alan Roper against a decision of the City of Charlottetown dated March 13, 2000.

BEFORE THE COMMISSION

on Wednesday, the 15th day of January, 2003.

Maurice Rodgerson, Vice-Chair
Weston Rose, Commissioner
Norman Gallant, 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

Counsel:
Jane Ralling

Witnesses:
Dr. J. McClure
Serge Bernard

2.    For the Respondent

Counsel:
David W. Hooley, Q.C.

Witnesses:
John Dalton
Paul Johnston
Harry Gaudet

Reasons for Order

1.  Introduction

[1] This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) by Alan Roper (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 Appellant's letter of appeal (Exhibit A1) dated March 28, 2000, the Appellant is appealing the decision of the City of Charlottetown (the Respondent) to deny the application for a building permit for parcel number 720177 located in the City of Charlottetown (in the former Community of East Royalty). Exhibit R13 contains the Respondent's March 13, 2000 Resolution for this decision.

[3]  By way of background, the Appellant purchased parcel number 720177 in April 1987; however the property had not been subdivided prior to the execution of the deed. The Community of East Royalty gave approval in principle to the subdivision of the property on October 14, 1987. The Community was then prepared to issue a building permit to the Appellant for a cottage upon receipt of a septic permit. However, the permit was not received. The Appellant later made an application to build rental cottages on parcel number 720177, and still later applied to subdivide the property into 5 lots: both of these applications were rejected by the Community of East Royalty.

[4]  In 1995, the Community of East Royalty and other communities near Charlottetown were amalgamated into the new City of Charlottetown. However, the official plan and bylaws of the Community of East Royalty remained in effect for the East Royalty neighbourhood of the new City until a new official plan and bylaws for the whole City came into effect on August 25, 1999.

[5] In 1998, the Appellant applied to the Respondent for a building permit for a single family dwelling to be constructed on parcel 720177. This application was denied and the Appellant did not appeal.

[6]  In 1999, the Appellant again applied for a building permit to construct a single family dwelling. The Respondent denied this application on August 6, 1999 (Exhibit R2R, Tab 11), based on sections 5.1 and 5.3 of the East Royalty Zoning and Subdivision Control Bylaws (revised 1989). The Appellant appealed this decision to the Commission. In Order LA99-12, issued on December 3, 1999, the Commission found that it had no jurisdiction to hear the matter, finding that the Respondent's Council did not make a decision in the administration of its Bylaws and therefore the Commission was without jurisdiction to hear that appeal. The Commission recommended, however, that the matter be considered by the Respondent's Planning Board and Council pursuant to the new By-law on the basis that the new Official Plan and Zoning and Development By-law (Exhibit R1, with Exhibit R14 representing the By-law as amended in August 2002) had come into effect since the Respondent's decision. The Respondent followed the Commission's recommendation and the present appeal is therefore against the March 13, 2000 Resolution by the Respondent's Council to deny the Appellant's 1999 building permit application.

[7]  A hearing of this present appeal was originally scheduled for June 5, 2000. On May 25, 2000, the Appellant provided Commission staff with a written request for a postponement of the hearing for medical reasons. The appeal was then held in abeyance with the consent of the Respondent. Commission staff communicated with both parties on a regular basis to obtain updates as to the status of the abeyance.

[8]  After suitable scheduling for the parties and due public notice, the Commission proceeded to hear the appeal on October 22, 23, 24, and November 1 and 13, 2002.

2.  Discussion

Appellant's Submissions

[9] The Appellant submits that the unpaved portion of the Heartz Road, commencing at the end of the paved portion and extending to the shore of the Hillsborough River, has matured into a public road and therefore parcel number 720177 does have frontage on a public street. Thus, the Respondent ought to issue a building permit for a single family dwelling to the Appellant. The Appellant is not seeking to subdivide parcel number 720177, but is only seeking to build a home on an existing lot. The Appellant provided the Commission with excerpts from two legal texts on the subject of the law of highways:

Joseph K. Angell & Thomas Durfee, A Treatise on the Law of Highways, 3d ed., with notes and references by George F. Choate (Boston: Little, Brown and Company, 1886).

Joshua Scholefield & Archibald W. Cockburn, M.A., Pratt and MacKenzie's Law of Highways, 18^th ed. (London: Butterworth & Co., 1932).

[10]   The Appellant submits the following points for the Commission's consideration:

A distinction must be made between previously existing roads and newly created roads. Previously existing roads were created by public use rather than requiring a specific act of a public authority with respect to the creation, or the establishment of standards, of a particular road. By contrast, newly created roads are required to be built to subdivision standards by a developer or a public authority to standards established by the public authority. These roads must be "accepted" by the public authority before becoming a public road. Thus, current minimum standards for roads in new subdivisions do not apply to a previously existing public road. In fact, there are three public clay roads within the boundaries of the Respondent.

The affidavit evidence of Harold Clements (Exhibit A27), Elmer Roper (Exhibit A28), Jean MacMillan (Exhibit A29) and Isabelle MacIntyre (Exhibit A30), establish that the unpaved portion of the Heartz Road has been used by the public for many years, they have used the road themselves and were never denied access to the road, the road was never blocked, and the road was maintained by the Department of Highways. The affidavit evidence of Reginald Parkman (Exhibit A31) establishes that he and his family have used the road, the road was never blocked, and he was never denied access. These affidavits, taken together, indicate that the unpaved portion of the Heartz Road was a public road since at least the 1920s.

Dr. J. McClure, who resides at the Binstead House (property number 192880) located adjacent to the unpaved portion of Heartz Road, testified that the unpaved portion of Heartz Road is used for both vehicular and pedestrian traffic by members of the public. In summer, the road is used by the public to access the Hillsborough River. It is used by hunters and ice fishers at other times of the year. The police have used the road to break up shorefront parties held by teenagers.

The Road Status Report (Exhibit A26), dated November 26, 1993 and signed by Carl MacDonald (who was the Provincial Chief Surveyor at that time), establishes that the unpaved portion of Heartz Road has been maintained (ploughed, widened and ditched to property 192880, scraped from 192880 to the shore). This report notes the absence of a conveyance or reservation, refers to the affidavits noted above, refers to a letter dated July 15, 1987 from the Department of Justice and notes that the "Road would appear Public".

Serge Bernard, Provincial Chief Surveyor, noted the following in his March 24, 1998 letter to Joe Coady (Exhibit R2R, Tab 17):

These arguments therefore in my opinion, give rise to the notion that this road in its entirety, extending southward from its intersection with the St-Peters road to the shores of the Hillsborough River is a public road.

Mr. Bernard explained the basis for his opinion in his oral testimony and provided his perspective on the common law requirements for a road to mature to the status of a public road.

The original owner of the unpaved portion of the Heartz Road, by acquiescing to the public use established in the affidavits, dedicated this strip of land as a public road by way of an implied dedication. Neither the original owner, nor his successors in title, reasserted sovereignty over the road: the road was not closed (for example for one day every year) and no signs were posted to indicate that it was a private road. The unpaved portion of the Heartz Road led to a navigable and tidal waterway, which in itself serves as a "public highway" at common law. Physical interruption due to weather conditions, such as winter snow or spring mud, is not sufficient to give rise to a common law "closure" of the road. The expression, "Once a public road, always a public road" is applicable, and the only way to remove the status of a public road is by way of a legislative act by the public authority. The expression, "a road is a road is a road" applies, as a public road for shore access is a public road for another purpose, such as providing road frontage for a family home.

While a formalization, for example by way of a deed from adjacent land owners to the public authority, that a road is in fact a public road may be a prudent step before that public authority expends significant funds on the road, such a step is an exercise of caution and not a legal requirement.

There is no requirement that the unpaved portion of the Heartz road be 66 feet wide, as there are other existing roads which do not meet that requirement and the Respondent's Zoning and Development By-law does not have a deeming section concerning the width of public roads within the Respondent's geographic boundaries.

As a public road, the unpaved portion of the Heartz Road vests in the Respondent, pursuant to section 63.1 of the Charlottetown Area Municipalities Act, R.S.P.E.I. 1988, Cap. C-4.1. In addition, "street" is defined in clause 1.(k) of said Act:

(k) "street" means all the area within the boundary lines of every road, street, highway or right of way which is designed or intended for or used by the general public for the passage of persons and vehicles, and includes bridges, sidewalks, and drainage works, but does not include a controlled access highway designated under section 27 or an arterial highway designated under section 29 of the Roads Act R.S.P.E.I. 1988, Cap. R-15.

As the unpaved portion of the Heartz Road is used by the general public for the passage of persons and vehicles, said road is a street vesting in the City of Charlottetown.

In a deed from James Wayne Ballem to Alan G. Roper and Elaine Roper, dated April 29, 1987 (Exhibit R2R, Tab 9), the legal description describes a 66 foot road or right of way which is stated as "being part of an existing public roadway". In N. Douglas Ross Q.C.'s August 10, 1998 letter to Joseph Coady (Exhibit R2R, Tab 29B), Mr. Ross notes that the previously cited portion of the legal description "… is just a statement by Jamie Ballem that it is a public roadway and that he is acknowledging it as a public roadway…". Both these statements make it clear that the previous owner of the lands contained in parcel number 720177 believed that the unpaved portion of the Heartz Road was, and is, a public road.

Mr. Ross' August 10, 1998 letter referred to above does not consider the impact of the Charlottetown Area Municipalities Act. His letter is focused on newly created roads, required as a part of a subdivision development, rather than an existing road and an existing lot. Mr. Ross concedes that there could be a public right of way for access to the beach over the unpaved portion of the Heartz Road. However, he considers that this would not be a public right of way for development purposes. With respect, it is submitted that this statement is inconsistent with the common law.

The former Community of East Royalty had approved the subdivision of parcel number 720177. While there is some suggestion that this parcel was not validly created under the development bylaw of that former community, the deed for the property was registered, and the former community, and more recently the Respondent, have been collecting property taxes from the Appellant on the basis of this subdivided lot. The former communities' development bylaw has been repealed, the Respondent's Zoning and Development By-Law (Exhibit R14) is now in effect, and the definition of "Lot" under section 3.113 of said by-law defines a lot as:

3.113 "Lot" means a parcel of land, whether or not it is shown as a Lot on a filed Plan of Subdivision, which is occupied or to be occupied by one or more Main Buildings, Structures, or Uses, and including all Yards and Landscaped Open Spaces required by this By-law, and is registered in the Prince Edward Island Registry of Deeds for Queens County.

There is no indication in the evidence that the former Community of East Royalty considered the subdivision of parcel 720177 to be unlawful following its October 14, 1987 decision to approve said subdivision. At a Land Use Commission hearing held on June 29, 1988, there was no suggestion that the subdivision was unlawful. It was noted that the Community was prepared to issue a building permit for a single, 624 square foot cottage, upon receipt of a septic permit. Surely the Community was in a sound position to determine whether or not its own by-law had been complied with. The Respondent is estopped from arguing that parcel number 720177 was not lawfully created as the Respondent is the successor municipality to the former Community of East Royalty and the Respondent cannot utilize its alleged previous default to deprive the Appellant of his property rights.

The various maps presented in evidence, Map of Charlottetown (Exhibit A25), New City of Charlottetown Street Inventory February 17, 1995 (Exhibit R15), New City of Charlottetown (map and listing of streets) June 29, 1995 (Exhibit R16) along with geolinc and tourism maps are useful tools and appropriate as a starting point. However, none of these maps are incorporated into the Respondent's Zoning and Development By-Law or the Charlottetown Area Municipalities Act, and therefore, these maps do not have the force of law.

The classification system set out in the Roads Act Highway Access Regulations ceased to be relevant when the Charlottetown Area Municipalities Act came into force. The fact that a road is not listed under a schedule to the Highway Access Regulations designates a road non-essential. A non-essential public road should not be confused with a private road.

Section 4.35(3) of the Respondent's Zoning and Development By-law requires that the access to a lot be safe and does not refer to the condition of the road or street itself. It is not appropriate to deny the issuance of a building permit based on the condition of the unpaved portion of the Heartz Road, as the evidence indicates that said road is a public street, vested in the Respondent.

The agenda for both the February 7, 2000 and March 7, 2000 meetings of the Respondent's Planning Board (Exhibits R9 and R11) read in part as follows:

This application is problematic for the City as the lot does not have frontage on a public street {Zoning Bylaw – s.4.35 on pg. 31}.

The Respondent's staff thus predetermined that the unpaved portion of Heartz Road was not a public road in setting the agenda for the Respondent's Planning Board. Therefore, the status of the unpaved portion of the Heartz Road was stated as a fact by the Respondent's staff, rather than allowing the Respondent's Planning Board to make its own determination as to whether or not said road was a public road.

[11]  The Appellant requests that the Commission find that the unpaved portion of the Heartz Road is a public street vested in the Respondent and order the Respondent to issue a building permit to the Appellant for a single family dwelling on parcel number 720177.

Respondent's Submissions

[12] In summary, the Respondent submits that the unpaved portion of the Heartz Road is merely a private right of way, and is not a public road. On this basis, parcel number 720177 does not front on a public street, as required under section 4.35 of the Respondent's Zoning and Development By-law (Exhibit R14). Section 9.2 requires 73.8 feet of frontage and this requirement has also not been met. The Respondent contends that this road is of poor quality and is unsafe for emergency vehicles, noting the requirements under section 4.41(6). The Respondent also casts doubt on the legality of the subdivision process which led to the purported creation of parcel number 720177.

[13]   The Respondent presented the following detailed submissions for the Commission's consideration:

The Appellant's deed for parcel number 720177 (Exhibit R2R, Tab 9) notes a private right of way in the deed's legal description. This casts doubt as to whether the unpaved road actually reaches the shore of the Hillsborough River. When the Appellant first applied for a building permit in 1987, he referred to the unpaved road as a right of way, not a road (Exhibit R3, Tab 48). In fact, at the July 22, 1987 meeting of the East Royalty Planning Board, the minutes (Exhibit R3, Tab 51) reveal that the Appellant commented that he owned a 66 foot right of way from Heartz Road to his property. He also commented that if he was not permitted to build under the Rural Zone uses, he feared he would not be able to build until a public road reached his property. In subsequent applications made by the Appellant to the former Community of East Royalty in 1988 (Exhibit R3, Tab 64), and 1993 (Exhibit R2R, Tab 13), the attached drawings showed parcel number 720177 blocking access from the unpaved road to the shore. These applications suggest that, at the time he acquired parcel number 720177 and for several years after, the Appellant believed that there was no public road reaching his property. If in fact the unpaved road was a public road, the Appellant was intending to block public access to the shore according to his 1988 and 1993 applications.

While the Department of Transportation and Public Works had considered affidavits filed by Michael Toole purporting to establish that the unpaved road was a public road (Exhibits A27 to A31 inclusive), the Department requested that Mr. Toole provide a letter from the land owners bordering the unpaved road. Such a letter was to indicate that the landowners agreed with the statements made by the deponents of the affidavits and that said landowners were willing to convey the necessary land to the Government of Prince Edward Island to comply with a 66 foot width requirement for the road. There is no such letter or letters from these landowners in the evidence before the Commission. There is no evidence that the Department had ever obtained such deeds from these landowners.

Mr. Bernard's March 24, 1998 letter to Joe Coady (Exhibit R2R, Tab 17) does not express a firm opinion that the unpaved road is a public road, as the letter is filled with "wiggle words".

As expressed in Mr. Ross' August 10, 1998 letter (Exhibit R2R, Tab 29B), while the right of way may provide a public access to the beach, this does not make it a public right of way for development purposes.

As the unpaved road extending beyond Heartz Road is not a public road, parcel number 720177 does not front on a public street as required under section 4.35 of the Respondent's By-law and the minimum frontage requirement under section 9.2 has also not been met.

With respect to the quality and safety of the unpaved road, section 4.41(6). requires that the Respondent not issue a building permit "…where the proposed Building or Structure, or its Alteration, repair, location or Use would be detrimental to the convenience, health or safety of occupants or residents in the vicinity or the general public." Portions of sections 4.35 and 4.52(6) require safe access for the same purpose. Given Dr. McClure's testimony as to the poor state of the unpaved road extending beyond Heartz Road, it would be unsafe to erect a home on parcel number 720177.

Section 63.1 of the Charlottetown Area Municipalities Act gives the Respondent full control over streets vested in the city. Full control would include the Respondent's right to determine whether or not to "scrape" or plow the road. It is within the Respondent's power to decide about maintenance and improvements to a public street. In the event that the unpaved road is found to be a public street, the Respondent is under no obligation to upgrade the street.

There is considerable evidence doubting the validity of the subdivision that purportedly created parcel number 720177. The legal description in the deed for parcel number 720177 does not include a reference to a survey or a survey plan approved by the former Community of East Royalty. There is no evidence that such survey plan exists. Since a survey plan has been a legal requirement since the 1970s, this suggests that a key ingredient for final subdivision approval is missing.

In fact, there is no indication that the Community ever issued final subdivision approval for this parcel. The October 14, 1987 minutes of the Communities' Council (Exhibit R3, Tab 60) suggest that the Community gave approval in principle for this parcel. These minutes also note that Mr. Ballem was required to pay a cash dedication fee of 7% of the parcel's selling price, and the application to subdivide would receive final approval when the land dedication funds were received. There is no evidence before the Commission that these funds were ever paid and Harry Gaudet, the Respondent's Chief Administrative Officer, testified that the Respondent was unable to find any record that the required cash dedication fee was ever paid.

In the Community of East Royalty Subdivision Control By-law (Exhibit R23) a portion of Part III APPLICATION & APPROVAL PROCEDURE under section 2 APPROVAL IN PRINCIPLE reads as follows:

Approval in principle of any proposed subdivision shall not be construed as final approval of such subdivision for legal conveyance or for land registration purposes.

Approval in principle shall be effective for a period of 6 months unless upon application an extension is granted.

As there is no evidence that an extension was granted, the Respondent submits that the approval in principle, granted by the Community of East Royalty on October 14, 1987, expired six months later. The expiry of approval in principle, the absence of a survey plan and the lack of any evidence that the cash dedication fee was ever paid make it clear that the subdivision of parcel number 720177 never received final approval.

Section 41 of the Planning Act R.S.P.E.I. 1974, Cap P-6, which was in effect at the time of the October 14, 1987 decision of the Community of East Royalty, provides that land shall not be sold or conveyed unless the land was subdivided in accordance with a plan of subdivision. Accordingly, as there is no evidence of a plan of subdivision, it is submitted that the Appellant's deed for property number 720177 was registered in error.

Subsection 24(3) of the current Planning Act reads as follows:

(3)      Where any subdivision of land or a lot within a subdivision requires the approval of the appropriate authority, no person shall convey a lot without first obtaining approval and no building or development permit shall be issued by the appropriate authority prior to approval of the subdivision of land or the lot within the subdivision. 1988,c.4,s.24; 1994,c.6,Sch.2 {eff.} March 31/95.

Accordingly, it is submitted that the Respondent is unable to issue a building permit for parcel number 720177 as subdivision approval for this parcel was never issued.

[14] As the unpaved road is not a public road and therefore parcel number 720177 does not have frontage on a public street as required by the Respondent's Zoning and Development By-law; as a residence on such a road would be unsafe for the Appellant and the public; and as it is very doubtful as to the legality of the subdivision creating this parcel, the Respondent requests that the Commission deny the Appellant's appeal.

3. Findings

[15]   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. The reasons for the Commission's decision follow.

[16] Appeals under the Planning Act usually take the form of a hearing de novo before the Commission. In an often cited decision which provides considerable guidance to the Commission, In the matter of Section 14(1) of the Island Regulatory and Appeals Commission Act (Stated Case), [1997] 2 P.E.I.R. 40 (PEISCAD), Mitchell, J.A. states for the Court at page 7:

…it becomes apparent that the Legislature contemplated and intended that appeals under the Planning Act would take the form of a hearing de novo after which IRAC, if it so decided, could substitute its decision for the one appealed. The findings of the person or body appealed from are irrelevant. IRAC must hear and decide the matter anew as if it were the original decision-maker.

         for its decision (s-ss. 28(8) and 37(3) of the Planning Act) and if it exceeds its authority or errs in law it is subject to review by this court by way of an appeal under s. 13 of the Island Regulatory and Appeals Commission Act.

[17]   While the Commission does have the power to substitute its decision for that of the person or body appealed from, such discretion should be exercised carefully. The Commission ought not to interfere with a decision merely because it disagrees with the end result. However, if the person or body appealed from did not follow the proper procedures or apply sound planning principles to the application for a building permit, then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed. Hearing a matter de novo, the Commission may also hear new evidence which was not before the original decision maker, in this case the Respondent. Having heard such evidence, the Commission may make any decision the Respondent could have made.

[18]  Subsection 28(1) of the Planning Act reads as follows:

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.

[19]  The Respondent's March 13, 2000 Resolution (Exhibit R13) reads as follows:

                RESOLVED:

That the building permit application for a single family dwelling on Heartz Road Extension (private clay lane) (PID #720177) be rejected.

While reasons are not detailed in the above Resolution, reasoning was addressed in the March 9, 2000 minutes of the Respondent's Planning Board (Exhibit R12), in prior correspondence between the Respondent's staff and the Appellant, and reasons were fully addressed in the Respondent's submissions to the Commission.

[20] From a review of all the evidence before the Commission, there appear to be three main issues to be considered:

1.  Does parcel number 720177 have frontage on a public street, as required under section 4.35, and quantified under section 9.2, of the Respondent's Zoning and Development By-law?

2.  Would access to said lot be safe for the Appellant, the general public and emergency vehicles, noting the requirements of section 4.41(6) of said By-law?

3.  Is parcel number 720177 a valid lot?

[21]  With respect to the first issue, whether parcel number 720177 has frontage on a public street, it is necessary to consider whether the unpaved portion of the Heartz Road is a public street or a private right of way. The Respondent appears to have determined that the unpaved portion of the Heartz Road is a "private clay lane". While the Commission does not possess the jurisdiction of the Supreme Court with respect to formal determinations of real property law, the Commission may make any determination the Respondent could have made. As neither party argued that the Respondent, or for that matter the Commission, lacked the necessary jurisdiction to determine whether or not the unpaved portion of the Heartz Road is a public street, the Commission will consider this matter within the parameters of its role as a quasi-judicial body created by statute.

[22]  In evidence are several affidavits from elders in the community which all attest to a long established use by the public of this road for the purpose of access to the shore of the Hillsborough River. The Commission has also had the benefit of the oral testimony of Mr. Bernard, the Chief Surveyor of the Province. Documentary evidence before the Commission suggests that the Department of Transportation and Public Works was, prior to the 1995 amalgamation, seriously considering the road to be a public road. Mr. Ross' letter of August 10, 1998 does acknowledge that there could be a public right of way for access to the shore over the road. However, Mr. Ross is of the opinion that the road is not a public road for development purposes. There is evidence to suggest that the Appellant had previously believed that the road was a private right of way. Based on the totality of evidence, the Commission finds that, upon a balance of probabilities, the unpaved portion of the Heartz Road was for many years a public road, no act occurred to change this status and, as a result of the Charlottetown Area Municipalities Act, this public road then vested in the Respondent as a public street.

[23]    With respect to the safety of access to the proposed single family dwelling to be located on parcel number 720177, the evidence before the Commission suggests that the condition of the unpaved portion of Heartz Road is somewhat poor. On the basis of the various colour photographs provided in evidence, the Commission finds that the first portion of the road, extending from the end of the paved section to Dr. McClure's home, is consistent in quality with the typical rural clay road in the Province, whether public or private. The Commission finds that the quality of said road deteriorates from the McClure property to the shore of the Hillsborough River.

[24] The Respondent's Zoning and Development By-law makes requirements for access to a public street (section 4.35), access to a lot (section 4.41) and it sets out detailed requirements for the design and construction of proposed public streets (section 7.6) within its general provisions for subdividing land. Given that the unpaved portion of the Heartz Road is a public street, not a proposed public street, and said road was a public road prior to amalgamation in 1995 and the new City's 1999 Official Plan and Zoning and Development By-law, the Commission finds that a reasonable obligation for safety on the street resides with the Respondent. The obligation for safe access from the street to any dwelling constructed on property number 720177 resides with the Appellant.

[25] The Commission agrees that the Respondent has the power to decide about maintenance and improvement issues with respect to its public streets. There is no requirement that the Respondent bring the unpaved portion of the Heartz Road up to subdivision standards. There is no requirement that the Respondent pave this road. The Commission heard testimony to the fact that there are other unpaved public streets within the Respondent's boundaries. Given that the construction of a dwelling on property number 720177 would result in two homes (the Binstead House and the Appellant's new home) on the unpaved portion of the Heartz Road, it would be reasonable to expect that this road would remain unpaved. With modest upgrades to the unpaved portion of Heartz Road, access to a dwelling situate at property number 720177 would be reasonably safe within the context of a rural type setting. The Appellant should not expect the same road standards as would be found in an urban or suburban type neighbourhood.

[26] Concerning the issue as to whether property number 720177 legally exists as a lot, the Commission agrees that the evidence does create some doubt in this regard. The wording of the definition of "Lot" under section 3.113 of the Respondent's Zoning and Development By-law appears to address the lack of a filed plan of subdivision. There is no evidence that the cash dedication fee was ever paid. The evidence, however, also suggests that the former Community of East Royalty treated the subdivision process as complete, moving onward to consider various building permit applications over a period of several years. The Community of East Royalty also considered, and rejected, an application for further subdivision of property number 720177. At no time did the Community of East Royalty question the legality of the original subdivision that created property number 720177. The Appellant has paid property taxes on property number 720177 and, outside of this appeal hearing, there is no evidence to suggest that either the Community of East Royalty, or its successor, the Respondent, has taken any action to resolve the issue of the legality of this lot. The Commission notes that the future land use map, attached as schedule "A" (page 53) to the Respondent's Official Plan July 1999 (Exhibit R1), appears to illustrate property number 720177. It therefore appears that the former Community of East Royalty, and its successor the Respondent, have accepted property number 720177 as a validly created lot, and the Commission finds that the Respondent is estopped from arguing that this lot was not lawfully created. Therefore, for the purposes of this appeal, the Commission finds that property number 720177 lawfully exists as a lot.

[27] The Commission therefore finds that the unpaved portion of the Heartz Road is a public road, the Respondent is responsible for making improvements to such road to meet its own minimum safety requirements and property number 720177 is a validly created lot for the purposes of the Appellant's proposed development. The Commission allows the appeal and directs the Respondent to reconsider the Appellant's application for a building permit pursuant to the Commissions findings contained in this Order.

[28] The Commission wishes, however, to make it clear that the Respondent may require that any future subdivision, whether a further subdivision of property number 720177 or of any other existing lot abutting the unpaved portion of the Heartz Road, be conditional on contributions to the upgrading of said road, providing that any such requirement is provided for in the Respondent's Zoning and Development By-law, or by way of a development agreement between the Respondent and an applicant for subdivision approval.

[29] The Commission notes that there was a suggestion made at the hearing that the Respondent may have acted in bad faith. The Commission wishes to make it clear that there is no evidence that either party acted in bad faith at any stage of this matter.

4. Disposition

[30] An Order allowing the appeal will therefore be issued.

Order

WHEREAS Alan Roper has appealed a decision of the City of Charlottetown, dated March 13, 2000;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on October 22, 23 and 24 and November 1, and 13, 2002 after suitable scheduling for the parties and 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 hereby allowed, and the Appellant's application for a building permit is referred back to the Respondent for reconsideration pursuant to the findings detailed in the Reasons for Order.

DATED at Charlottetown, Prince Edward Island, this 15th day of January, 2003.

BY THE COMMISSION:

Maurice Rodgerson, Vice-Chair

Weston Rose, Commissioner

Norman Gallant, 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.