Order LA04-05 - Docket LA03011 - Planning Appeal - Mark Robertson and Jennifer Stewart v. Community of Eastern Kings (August 19, 2004)

Dockets: LA03011
Order LA04-05

IN THE MATTER of an appeal by Mark Robertson and Jennifer Stewart against a decision of the Community of Eastern Kings, dated September 9, 2003.

BEFORE THE COMMISSION

on Thursday, the 19th day of August, 2004.

Maurice Rodgerson, Chair
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:
        Murray L. Murphy
        Kerri A. Carpenter (Campbell)

        Witnesses:
        Dianne Griffin
        Jennifer Stewart

2.    For the Respondent

Counsel:
John K. Mitchell, Q.C.

Witnesses:
Alfie Wakelin

3.    For the Developer

        Martinus Rose

4.    Member of the Public

        Christina Wyatt

Reasons for Order

1.  Introduction

[1]  This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission), pursuant to section 28 of the Planning Act R.S.P.E.I. 1988, Cap. P-8, (the Planning Act), by Mark Robertson and Jennifer Stewart (the Appellants) against a September 9, 2003 decision of the Community of Eastern Kings (the Respondent) to issue a development permit to Martinus Rose (the Developer) to construct a summer cottage (the project) on property number 759027 in Red Point (the subject property).

[2] The Commission received the Appellants' Notice of Appeal on September 26, 2003. The Commission initially offered several possible hearing dates in mid November and early December 2003. However, the Appellants were not prepared to proceed until documentation was received from the Department of Environment and Energy (the Department of Environment). In February 2004, the Appellants obtained requested information from the Department of Environment following the issuance of a Subpoena Duces Tecum issued by the Deputy Prothonotary of the Supreme Court. Following suitable scheduling for the involved parties, due public notice and the receipt of further documentation arising from the issuance of a second subpoena in June 2004, the Commission proceeded to hear the appeal on June 17, 2004.

[3]  At the hearing, counsel for the Respondent requested the opportunity to file a written submission solely on the issue of whether or not the subject property was an approved lot. This submission was filed on July 9, 2004 and the Appellants' rebuttal was filed on July 16, 2004.

2.  Discussion

Appellants

[4] The Appellants filed an extensive written brief with the Commission. Highlights of the Appellants' oral summation include the following:

The proposed development does not meet the setback requirements of the Respondent's Zoning and Development Bylaw 2002 (the 2002 Bylaw); specifically section 5.19 Setbacks from Beach, Sand Dune, Wetland or Watercourse.

With respect to section 5.19.1 Exception, it is the evidence of the Appellants' expert witness, Diane Griffin, that setbacks of 75 feet would not be sufficient, given the potential for the leaching of wood preservatives from the foundation poles proposed for the project.

With respect to section 5.24.1 Other Dunes, the Appellants submit that there is no provision to allow development that does not meet requirements on the strength of a promise to "fix" the breached requirements at a later date. The Appellants further submit that the project would result in a disturbance of more than 10% of the sand dune and that the project is likely to adversely alter the natural, topographical and biological features of the sand dune.

The Appellants submit that the project would result in a detrimental impact and therefore the issuance of a development permit for the project would be barred by section 5.2, specifically, clause (b) of that section.

With respect to section 5.15 Lot Categories, the Appellants submit that a sand dune is not a Category I, II or III lot.

The Appellants submit that the subject property, known as Lot 14, was never approved as an approved lot.

[5]  The Appellants request that the Commission quash Development Permit No. 22/2003 issued by the Respondent to the Developer.

Respondent

[6] The Respondent's oral summation includes the following:

The Department of Environment characterized the subject property as Category I when the Developer initially applied for a permit in 1998.

The Developer's alterations, including the cutting of trees and the placement of shale fill on the subject property occurred prior to the Respondent's 2002 Bylaw taking effect. These alterations were a "done deal" before the 2002 Bylaw, especially the requirements of section 5.24.1, took effect.

While the Respondent had previously issued development permits under the old Bylaw, the present application was assessed by a new Development Officer under the new 2002 Bylaw. The shale pad was in place before the 2002 Bylaw came into effect. During this time period, the Appellants' expert witness was the Assistant Deputy Minister, yet the Department of Environment took no action to reverse these alterations. The Respondent could not order the shale pad to be removed and the alterations reversed. The only way the Respondent could require the Developer to address the alterations was to issue the permit subject to a condition to restore the subject property.

In considering the present application, the Respondent consulted with the Department of Environment and relied on said Department for environmental advice. Setback measurements were taken with the assistance of an Environment Officer. Based on these measurements, the setback requirements set out in the 2002 Bylaw were met.

[7] In a written submission filed with the Commission, the Respondent submitted that the subject property was in fact an approved lot.

[8]  The Respondent requests that the Commission deny the appeal.

Developer

[9]  The Developer submits that he had contacted the Department of Environment and the Respondent and followed the rules as they were at the time. The Developer requests that the Commission deny the appeal.

Member of the Public

[10] Christina Wyatt spoke as a member of the public. She states that her father had previously owned the subject property and surrounding land. She owns property above the subject property. Her father had been offered "top dollar" for the subject property in the past, but refused to sell it as he wished to preserve it. She was very concerned when the Developer cut the trees on the dune area of the subject parcel. She requests that the subject property be preserved and remain undeveloped.

3. Findings

[11] 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.

[12] Appeals under the Planning 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.

[13]  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 Planning Act, then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.

[14]  At the hearing, the Respondent requested that the Commission strike out the grounds of appeal set out in paragraphs , and (i) of the Appellants' Notice of Appeal. These paragraphs read as follows:

(a) The Applicant and the proposed development have breached and continue to breach the Environmental Protection Act, R.S.P.E.I. 1988, Cap. E-9 by interfering with, altering, removing and/or destroying a sand dune.

(b)  The Applicant did not receive permission to interfere with, alter, remove or destroy a sand dune. Alternatively, if the Applicant did receive said permission, the permission was granted contrary to law.

…

(i)    such further grounds as Counsel for the Appellant may advise.

[15] The Respondent submitted that the focus of the appeal is on the administration of the Respondent's 2002 Bylaw. Paragraphs (a) and (b) of the Notice of Appeal appear to be concerned with the Developer's actions in 1999 to deposit fill on portions of the subject property. As the Department of Environment filed no charges and issued no orders it would appear that ministerial discretion was exercised to do nothing. The Respondent submits that the Commission cannot "step into the shoes of the Minister of Environment". The Respondent further submits that paragraph (i) should be struck out as no additional grounds have been presented to the Commission.

[16]  The Appellants consented to the removal of paragraph (i). However, the Appellants, while recognizing that the Commission cannot "step into the shoes" of the Minister of Environment, submit that the Commission cannot allow a developer to break the law.

[17]  At the hearing, the Commission ruled on the above preliminary matter. Paragraph (a) clearly refers to the Environmental Protection Act (EPA Act) and it is well established that the Commission has no jurisdiction to hear appeals under the EPA Act. Paragraph b) is a broader version of paragraph (a) and similarly, the Commission also lacks jurisdiction with respect to that ground of appeal. As there is no evidence before the Commission that a body with jurisdiction has ruled that the Developer contravened the EPA Act in his alterations of the subject property, the Commission cannot consider the EPA Act to have been contravened.

[18] With respect to the issue as to whether the subject property is an approved lot, the Commission notes that a provincial property number had been assigned by the Department of Provincial Treasury, the property had been deeded and sold, no previous action was ever taken to challenge the legal status of the subject property and no objection had ever been raised when a previous cottage had been built on the subject property. In the absence of a judicial ruling on the issue, and for the sole purpose of this present appeal, the Commission finds that the subject property is an approved lot.

[19] The Commission wishes to point out that a substantial amount of the Appellants' evidence related to the environmental dimension of the Developer's actions, past and present, concerning the project. While this information is helpful to the Commission as a background, the Commission wishes to remind the parties that it is the Respondent's decision to issue a building permit in 2003, under its 2002 Bylaw, which is at issue before the Commission.

[20]  The Commission finds that by the time the Respondent received the Developer's current application for a development permit, the trucking of substantial shale fill onto the subject parcel had been accomplished by the Developer. The Respondent's 2002 Bylaw had not existed when the fill was trucked in. The authority to take any necessary action did not rest with the Respondent. Accordingly, given that no charges were laid or orders issued under the EPA Act, the Respondent could not deny the Developer's application based on possible past breaches of the law.

The Commission finds that the Respondent considered the Developer's application from the perspective of what the Developer proposed to do, rather than past actions, and applied the 2002 Bylaw accordingly. While the trucking in of shale fill in the late 1990s may well have disturbed far more than 10% of a sand dune on the subject property, the Respondent focused on the potential future impact of the Developer's proposed project to construct a summer cottage. Given that the Respondent does not have the power to administer the EPA Act, the Commission is satisfied that the Respondent's approach was reasonable.

[22] The Commission notes that the Respondent's Development Officer carefully looked at the environmental aspects of the proposed project, sought input from the Department of Environment, viewed the subject property and took dimensional measurements to determine setback requirements with the assistance of an Environment Officer. The Respondent then reviewed the application for the proposed project according to the requirements of its 2002 Bylaw and Official Plan and issued the development permit.

[23] While the Appellant emphasized the opinion of its expert witness, the timing of her opinion must be kept in mind. At the time the Respondent sought input from the Department of Environment, the Appellant's expert witness was serving as the Department's Assistant Deputy Minister. While the expert witness may now have a different opinion from that of the Environment Officer which assisted the Respondent's Development Officer, the Commission is satisfied that the Respondent thoroughly reviewed the Developer's application, sought advice from the Department of Environment and relied on said advice before applying the 2002 Bylaw and issuing Development Permit No. 22/2003.

[24]  Accordingly, the Commission finds that, from the perspective of the Planning Act, the Respondent's decision is valid and the Commission will not disturb it. Accordingly, the appeal is denied.

[25] However, the Commission shares the environmental concerns expressed at the hearing, particularly those addressed by the expert witness. As previously noted, the Commission has no jurisdiction over the EPA Act and accordingly allegations concerning possible environmental violations can only be dealt with by a forum possessing the necessary statutory or common-law jurisdiction.

4. Disposition

[26]    An order denying the appeal will therefore be issued.

Order

WHEREAS Mark Robertson and Jennifer Stewart have appealed a decision made by the Community of Eastern Kings on September 9, 2003;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on June 17, 2004 after due public notice and suitable scheduling for the 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 19th day of August, 2004.

BY THE COMMISSION:

Maurice Rodgerson, Chair

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.