[1]  This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) on July 29, 2003 under section 28 of the Planning Act R.S.P.E.I. 1988, Cap P-8, (the Planning Act) by Doug Aitken and other concerned residents (the Appellants), against a decision of the Town of Cornwall (the Respondent), dated June 19, 2002.   The Appellants Notice of Appeal (Exhibit A1) was filed on July 8, 2002 and contains a list of over 40 signatures of residents of the Town & Country Subdivision (the Subdivision).  

[2]  The Respondent's June 19, 2002 decision provided preliminary approval, subject to conditions, for the Jabbour family (the Developer) to make the following changes within the Subdivision:

 1. lots 44 to 50 on Pleasant Drive to be reconfigured to allow one additional lot; 

 2. lots 65 to 72 on Queens Road to be reconfigured to allow for up to two additional lots; 

 3. to subdivide lot 20 on the corner of Kingston Road and Pleasant Drive; and

 4. to subdivide lot 25 on the corner of Susan Drive, Queens Road and Barbara Drive. 

[3]  Following the filing of the appeal, all the parties entered into mediation with the assistance of Commission staff.   A mediation session was held on October 29, 2002 and progress appeared to have been made at that meeting.  In the months that followed, no further progress was made, and the Commission canvassed all the parties to obtain a suitable date for a public hearing.  Commission staff received a response from the Appellant and Respondent; however, no response was received from the Developer.  After suitable scheduling for the participating parties, the issuance of a Notice of Hearing to all parties and due public notice, the Commission proceeded to hear this appeal on December 1, 2003.  The Developer did not attend the hearing.

2. Discussion

 The position advanced by the Appellants

[4]  In the Appellants' Notice of Appeal, it was submitted that the Respondent did not follow Policy PR-5 of its Official Plan.  The Appellants also contended that the environmental issue of a buffer zone was not addressed.  The Appellants emphasize the following points in their oral submissions: 

•  In the past, the Respondent turned down similar requests by the Developer to reconfigure the Subdivision.  In 1997, the Respondent rejected a similar reconfiguration for the Subdivision under section 8.5 of the Respondent's Zoning & Subdivision Control (Development) Bylaw (the Bylaw).    Policy PR-5: Infilling, in the Respondent's Official Plan, requires residential infilling to conform to the development standards under which the subdivision was originally approved or be in general conformance with neighbouring developed lots.  Therefore, it is submitted that the Respondent erred in its more recent decision to approve the requested reconfiguration of a portion of the Subdivision as such approval was contrary to Policy PR-5 of the Official Plan and section 8.5 of the Bylaw. 

•  In 1998, the Respondent's Planning Board denied a similar reconfiguration request for the Subdivision noting that there were storm water and other drainage problems that needed to be remedied before development could continue.  To the best of the Appellants' knowledge, an agreement between the Developer and the Province to address the drainage issue has not been reached as yet.

• The original lot frontage of most of the lots in the Subdivision was 100 feet. There appears to be an error in the calculation of the proposed reconfigured lot frontage for Queens Road of 81.5 feet.  The documentation sent to residents show lot 73 as being consolidated with lot 23 and this lot not owned by the Developer.  However, it became apparent at the mediation session in October 2002 that this lot was in fact still owned by the Developer and should have been included in the reconfiguration proposal.  Further, the 81.5 foot lot frontage is questionable, because the math does not add up and the Appellants submit the actual frontage would amount to 80 feet per lot.

• The Respondent provided written notification of the Developer's reconfiguration request to residents of the Subdivision and the neighbouring Warren subdivision.  However, when a rezoning occurred within the Warren subdivision, the residents of the Subdivision were not notified.

• A stream runs through several of the affected lots, resulting in a buffer zone.  The presence of this buffer zone reduces the amount of land in the affected lots which can be developed.  This should be considered before approving a narrower lot frontage.

The Appellants request that the Commission allow the appeal and quash the Respondents decision thus restoring the affected lots to their originally planned lot frontage of 100 feet.

The position advanced by the Respondent

The Respondent submits that it followed the process required under the Bylaw and that its Official Plan and Bylaw provided it with the authority to allow preliminary approval to the reconfiguration of the Subdivision.  The Respondent notes the following in its oral submissions:

•  At its May 8, 2002 meeting, Planning Board considered the impact that the proposed reconfiguration of portions of the Subdivision would have on the existing streetscape.  Planning Board felt that there would be no negative impact on the streetscape or the character of the Subdivision.

• The decision to allow preliminary approval for the reconfiguration of the Subdivision has several conditions that must be met before final approval can be given.  These conditions address storm water issues affecting the Subdivision.

• The reconfiguration of the Subdivision would permit homes as large as, or larger, than the existing homes already in the Subdivision.  Thus, the reconfiguration of itself ought to have no negative impact on existing property values within the Subdivision.

• While the Respondent had previously rejected a similar application by the Developer for a reconfiguration of parts of the Subdivision, this was due to a different interpretation given by a different group of people.

• As a matter of clarification, the confusion over the ownership of lot 73 stemmed from a Geomatics error which indicated that lot 73 was not owned by the Developer.  With the discovery that lot 73 was in fact owned by the Developer, this resulted in the Queens Road lot frontages being reduced from 100 feet to 85 feet, rather than 100 feet to 81.5 feet.

• As a further matter of clarification, the Bylaw requires residents to be notified within 200 feet for a rezoning application, and within 500 feet for other applications for which written notice is required.  This is why some residents of the Warren subdivision were included in the written notification for the reconfiguration application, while residents of the Subdivision were not included in the prior rezoning matter affecting the Warren subdivision.

The Respondent requests that the Commission find that the Respondent acted within the requirements of its Official Plan and Bylaw in making its decision to allow preliminary approval to the Developer's proposed lot reconfiguration and thereby deny the appeal.

3.  Findings

[5]  After a careful review of the evidence, the submissions of the parties, and the applicable law, it is the decision of the Commission to deny the appeal.  The reasons for the Commissions decision follow.

[6]  Appeals under the Act generally 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.

[7]  In previous appeals, the Commission has found that it 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 in considering an application made under a bylaw made pursuant to the powers conferred by the Act, then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.

[8]  Policy PR-5 of the Respondent's Official Plan reads as follows:

            Policy PR-5: Infilling

Council shall ensure that “infilling” which occurs within existing developed neighbourhoods conforms to the established development character and streetscapes, even if the resulting standards exceed the minimum provisions of the Development Bylaw.

Plan Action:

     The Development Bylaw shall require that residential “infilling” must conform to the development standards under which the subdivision was originally approved or be in general conformance with neighbouring developed lots.

                  (emphasis added)

[9]   Section 8.5 of the Bylaw sets forth the minimum development standards for a lot in a R1 zone, including the minimum frontage requirement of 75 feet for fully serviced lots, and then goes on to state in part:

Notwithstanding the above regulations, within existing approved subdivisions, Council may require that new developments conform with the development standards and development character which has been established, even if these standards exceed the minimum standards stated above.

(emphasis added)

[10]  Given that the proposed reconfiguration of the Subdivision does not conform to the lot frontage standards under which that subdivision was originally approved, and that full conformance is a discretionary requirement that the Respondent's Council “may” impose, the key question for the Commission is whether the proposed reconfiguration is “in general conformance with neighbouring developed lots”. 

[11]  The Commission notes that the proposed reconfiguration of undeveloped lots would result in the following lot frontage reduction:

• Pleasant Drive – 100 feet reduced to 88 feet (12% decrease).

• Queens Road – 100 feet reduced to 85 feet (15% decrease).

The Commission finds that a reduction of lot frontage of 12% and 15% respectively would still allow the reconfigured lots to be in general conformance with the neighbouring existing homes.  This finding is premised on all other lot parameters remaining the same.  The Commission therefore finds that the Respondent has the legal authority, given the wording of its Official Plan and Bylaw, to grant preliminary approval for the proposed lot reconfiguration.

[12]  The Commission notes the residents of the Subdivision provided clear feedback to the Respondent regarding the proposed reconfiguration, and understands their expressed frustration when that input was not followed as it had been in the past.  However, the Respondent's Official Plan and Bylaw do not bind its Council to adhere to views expressed as part of the public consultation.

[13]  The Appellants have presented a reasonable argument and the Commission expects that the Respondent will strictly enforce the conditions specified in the preliminary approval before granting final approval for the lot reconfiguration.  In addition, there is now little, if any, room for further alteration of the lots which could be justified on the basis of “general conformance”.   While the Commission finds that the Respondent may legally grant preliminary approval for the proposed reconfiguration, the Commission questions the feasibility of the proposal from the Developer's standpoint, given the additional costs of reconfiguration.  That, however, is ultimately a decision for the Developer.

[14]  The Commission notes that, according to the December 13, 2003 Royal Gazette, the Respondent has a new Official Plan with a December 5, 2003 approval date.  For greater clarity, the Commission wishes to point out that this Order reflects the previous Official Plan which was lawfully in effect at the time of the filing of the appeal, and which continued in effect during the public hearing process. 

[15]  As the Commission has found that the Respondent does have the legal authority under its Bylaw and Official Plan to grant preliminary approval for the proposed reconfiguration of lots in the Subdivision, the appeal is denied.

4.  Disposition

[16]   An Order denying the appeal will therefore be issued.