Order LA04-07 - Docket LA04001 - Planning Appeal - J'Nan (Jane A.) and Kirk Brown v. Minister of Community and Cultural Affairs (Sep. 8, 2004)

Dockets: LA04001
Order LA04-07

IN THE MATTER of an appeal by J'Nan (Jane A.) and Kirk Brown against a decision by the Minister of Community and Cultural Affairs dated December 29, 2004.

BEFORE THE COMMISSION

on Wednesday, the 8th day of September, 2004.

Brian J. McKenna, Vice-Chair
Weston Rose, Commissioner
George MacDonald, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

Appearances & Witnesses

1. For the Appellants

        Kirk Brown

Witnesses:
Judith East
Daphney Daley
J'Nan Brown
Mary Dalton
Andrew Wells
Catherine Grandjean

2.  For the Respondent

Counsel:
Robert A. MacNevin

Witnesses:

Don Walters
Morley Foy
Greg Wilson
Jake Bartlett

3. For the Developer, Allan Properties Inc.

Counsel:
James C. Travers, Q.C.

4. Member of the Public

Tim Banks

Reasons for Order

1.  Introduction

[1] This is an appeal filed with the Island Regulatory and Appeals Commission (the Commission) by J'Nan (Jane A.) and Kirk Brown (the Appellants), 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 January 19, 2004 and other evidence before the Commission, the Appellants are appealing the decision of the Minister of Community and Cultural Affairs (the Respondent), dated December 29, 2003, to issue "approval date stamping" for Case #12817E – Nancy Allan, Clyde River, for provincial parcel number 756122 owned by Allan Properties Inc. (the Developer), in the Community of Clyde River. This approval represents the final approval of Phase 1 of a 20 lot subdivision for single family dwelling use.

[3]   By way of background, on September 26, 2002, the Commission received a Notice of Appeal filed by Kirk Brown and J'Nan (Jane A.) Brown of a decision of the Minister of Provincial Affairs and Attorney General (now the Minister of Community and Cultural Affairs), dated March 3, 1994, to issue preliminary approval to Donald Allan (presently Allan Properties Inc.) to establish a single family dwelling subdivision on Provincial Property Number 756122. The Commission issued Order LA02-05 on December 6, 2002 finding that it did not have the jurisdiction to hear the appeal of the March 3, 1994 decision to grant preliminary approval, given that the September 26, 2002 Notice of Appeal was filed well beyond the twenty-one day appeal period set forth in the Planning Act. A portion of Order LA02-05 reads as follows:

AND WHEREAS the Appellant may file a fresh appeal, within twenty-one days, of a decision of the Minister to give final approval to the aforementioned subdivision, as the current requirements of subsection 28.(4) were not in effect at the time of the Respondents decision to issue preliminary approval of this particular subdivision;

[4] After due public notice and suitable scheduling for the three involved parties, the Commission proceeded to hear the present appeal on April 28, 2004. On that date, the Respondent requested an adjournment to address documentary evidence very recently filed by the Appellants. The Appellants and Developer consented to this request, and the hearing was adjourned until June 18, 2004. The Commission then heard the appeal on June 18 and 25, 2004.

[5]  At the commencement of the hearing on June 18, 2004, a preliminary matter was raised by the Developer concerning two issues referred to by the Appellants in an attachment to their Notice of Appeal. The Developer contended that the Commission did not have jurisdiction to deal with the land title transfer issue raised by the Appellants. The Developer also contended that, with respect to the Appellants raising subsection 15(1) of the Canadian Charter of Rights and Freedoms (the Charter), the Commission does not have the power to strike down legislation and that any such challenge to legislation is properly heard by the courts. The Commission ruled orally on these preliminary matters and a summary of such ruling will be referred to later in these reasons.

[6] With the consent of all parties, the Commission viewed the site of the subdivision on June 28, 2004.

2.  Discussion

Appellants' Position

[7] The Appellants, in addition to their Notice of Appeal, filed written submissions with the Commission. Highlights of their oral submissions follow.

As the Developer was permitted to heavily invest in the subdivision before the Appellants had an opportunity to appeal, the Appellants believe they are in an unequal position.

There is a discrepancy between residents of the Province who live in communities with an official plan and development bylaws, versus those residents who live in portions of the Province where there is no official plan and development bylaw.

The Appellants submit that the Commission, in Concerned Citizens of Meadowbank and Clyde River v. Provincial Affairs, Order LA96-05, had previously considered a 19 unit rural subdivision to be contrary to the goals and principles of the Planning Act. However, the Appellants submit the Commission denied that appeal, allowing that subdivision to proceed, on the basis that subsection 19(1) of the Coastal Area Regulations provided that the subdivision approval may be revoked if no lot is conveyed within five years. Since subsection 19(1) was later revoked, the Appellants submit that the Commission can no longer take comfort from such a safeguard against premature and haphazard development. It is therefore submitted that if subsection 19(1) had not been in effect the Commission would have allowed that appeal.

The subdivision will have an effect on neighbouring lands and will remove Class II and Class III land from agricultural use.

It is submitted that preliminary approval was de facto approval which did not meet the intent of the Planning Act and that the delay in the appeal process until all infrastructure was complete resulted in a process biased in favour of the Developer.

The Appellants were informed by the Respondent's staff that they could not appeal until final approval had been given to the subdivision.

The Appellants submit that the Respondent's notification process is not sufficient for a twenty-one day appeal period.

[8]  The Appellants request that the Commission allow their appeal, revoke approval of the subdivision and order the land to be returned to its state before infrastructure development was undertaken.

Respondent's Position

[9] The Respondent filed a pre-hearing brief providing a chronological outline of facts and a response to each ground of appeal raised by the Appellants. Highlights of the Respondent's oral submissions follow.

·         The subdivision meets all the requirements and standards set forth in both the old and new Planning Act regulations.

·         All departments (Community and Cultural Affairs, Transportation and Public Works, Environment and Energy) are satisfied that all applicable regulations have been met.

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

Developer's Position

[11] Highlights of the Developer's oral submissions follow.

The Developer originally made application in 1990. When preliminary approval was granted in 1994, no appeal was filed within the twenty-one day appeal period. The matter was not taken to the courts on judicial review. As there was no appeal of the preliminary approval, the Developer was entitled to proceed with the subdivision.

Prior to the granting of final approval, the Developer hired consultants, installed paved roadways, underground electrical service and a water system.

Ms. East, the Appellant's expert witness, failed to address the Coastal Area Regulations which apply to this development.

[12] The Developer requests that the Commission deny the appeal.

Member of the Public

[13]  Tim Banks spoke at the hearing as a member of the public. Mr. Banks had seen a petition at a local restaurant and was concerned when the petition suggested that the Commission was influenced by petitions. After examining the petition, he visited the subdivision. He expressed the opinions that the engineering and consulting companies hired by the Developer have a good reputation, the subdivision was not built on prime agricultural land, the subdivision project was good for the local economy and the development is not out of character with the surrounding community. He also expressed his opinion that all lots would be sold within two to four years.

3. Findings

[14]  After giving careful and full consideration to the evidence submitted in this case, the Commission has decided to deny the appeal. The reasons for the Commissions decision are as follows:

[15] The Commission, as an appellate body, has the same decision making power as the tribunal at first instance, in this case the Respondent. The Commission is a creature of statute; it does not have absolute powers and is bound by the law. In the present appeal, the Commission is bound by the regulations in effect at the time of preliminary and final approval, respectively.

[16] On appeal, the Commission has the power to hear the evidence and arguments as presented by the parties and decide whether to allow the appeal or dismiss it based on the evidence and arguments presented and within the applicable regulations.

[17]  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.

[18] With respect to the preliminary matter of the land title issue raised by the Appellants, the Commission notes that the transfer of title to land is not a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by the Planning Act. Accordingly, the Commission has no jurisdiction to hear arguments relating to the transfer of title. Further, even if land title issues could be heard by the Commission, the transfer of title occurred many years ago and thus falls well outside the statutory twenty-one day appeal period.

[19] Concerning the preliminary matter relating to the Appellants' arguments concerning the Charter, the Commission does have the ability to hear arguments concerning the Charter relating to issues on appeal within the Commission's jurisdiction. However, the Commission does not have the jurisdiction to strike down legislation, and therefore the available Charter remedies are extremely limited.

[20]  With respect to Order LA96-05 Concerned Citizens of Meadowbank and Clyde River v. Provincial Affairs, the Commission notes that the issues contained in that appeal and the present appeal are remarkably similar. The Appellants emphasized their view that the Commission denied the appeal in Order LA96-05 on the basis of "taking comfort" in the provisions of subsection 19(1) of the Coastal Area Regulations. The Appellants argument appears to be that the Commission in Order LA96-05, ‘but for' subsection 19(1), would have allowed the appeal and quashed the Minister's decision. Given that this subsection was later repealed, the Appellants argue that the Commission should allow the present appeal.

[21]  Order LA96-05 reads in part:

It is clear to the Commission that any decision made with respect to the enforcement of the Regulations must contribute to the achievement of the stated principles and policies as stated in Part I, including the goals as set out in subsection A pertaining to the Subdivision of Land. In addition, the Regulations pertaining to the coastal area must also contribute to the general intent, principles and objectives according to the Coastal Development Policy made by the Lieutenant Governor in Council subsequent to Part I.

The Commission is of the opinion that the Regulations which are adopted to guide and control development, and which are to be construed in accordance with the principles and policies enunciated in Part I, are not consistent. By example, the Commission is of the opinion that for those subdivisions which may be located in both the coastal area and a rural area the provisions of the Coastal Area Regulations do not take into account, in the approval process, whether a proposed subdivision would be taking class 2 or 3 agricultural land out of production prematurely or unnecessarily. Under the Coastal Development Policy, the only provision pertaining to prematurity is the provision to discourage premature subdivision by ensuring all approved subdivisions are assessed at market value (Section 6.(c).

To further illustrate this issue, we find that in applying the provisions under subsection A of Part I to the subject subdivision, the proposed 19 lots contribute little to the achievement of many of the goals. Considering the location, the surrounding land use and the subdivision size, it is reasonable to conclude that permitting this subdivision does not contribute to controlling haphazard development but perpetuates this type of development. The subdivision is not contiguous to other subdivisions but represents the initial conversion of active rural agricultural lands to residential use which does not contribute to the prevention of unnecessary loss of prime agricultural land but enhances the loss. The report by Kingsley Lewis (Exhibit D25) makes very clear to the Commission that in his professional opinion the proposed subdivision conflicts with the goals of ensuring a form of development in the province that is efficient in terms of servicing and provides a maximum of convenience and safety.

Mr. Lewis states on page 6 of his report:

The predominant adjacent uses to the subject land parcel are active agricultural, although there are a number of single family residences in the immediate vicinity (along the Meadowbank Road)[SIC]. There exists a potential for conflicts between occupants of the subdivision and adjacent agricultural landowners respecting such matters as spraying of crops, noise from machinery, odours from manure spreading etc. Such conflicts would be detrimental to the convenience of the adjacent agricultural landowners in pursuing their livelihood. The incidence of this type of conflict has been increasing in recent years.

The Commission also concludes that based on the evidence of Mr. Lewis, the proposed subdivision will not assist to minimize land use conflicts.

The Commission finds the proposed subdivision appears to be contrary to many of the specific goals stated in Section A. of Part I of the Regulations.

The proposed subdivision is 19 lots in size without accounting for the additional lots that the Department of Transportation and Public Works requested. The Commission understands that it is not the desire of the developer to create more than 19 lots and has no reason to believe that he will not develop a subdivision of the highest quality. Clearly, one can only draw from the provisions contained in Part I, subsection B - Subdivision in Rural Areas - that for a 19 lot subdivision the developer must demonstrate that there is a need for the subdivision. Further, as argued by the Appellants, this proposal will result in some loss of productive Class 2 or 3 agricultural land.

The Commission also heard evidence from Kingsley Lewis on how he evaluated the subdivision pursuant to the provisions of Section 25 and determined, inter alia, the proposed subdivision would be detrimental to the convenience of the adjacent agricultural landowners due to potential conflicts between occupants of the subdivision and the agricultural landowners respecting agricultural land use and practices and that the proposed subdivision would precipitate premature development.

When one examines the provisions of Section 25 of the Regulations in accordance with the Statement of General Planning Principles and Policies as set out in Part 1, one might have good reason to deny the 19 lot subdivision as proposed on this parcel. However, given the location of the proposed subdivision along the Clyde River and within the coastal area, the Coastal Area Regulations must also be applied in this case, and pursuant to Section 17.(2) this form of development is permitted in the coastal area provided certain conditions can be satisfied and the development is the type contemplated in the Coastal Development Policy. To emphasize this point not only is the site located in the coastal area but there is no limit on the number of lots that can be approved, only how they can be phased in.

Under the Coastal Area Regulations there is no provision for the Minister to consider whether an application to subdivide would be taking class 2 or 3 agricultural land out of production prematurely or unnecessarily. The only real criterion to satisfy in this instance, as prescribed by Section 17.(1), is to determine whether it is reasonable that the lots may be developed within five years.

Other than the Developer indicating that the market for his lots is good we have no expert evidence on whether or not it is reasonable to expect that the 19 lots will be developed within a five year period. The evidence put forward by the Appellants, pertaining to the availability of undeveloped lots and land available for subdivision has not convinced the Commission that the proposed 19 lot subdivision cannot be developed within five years.

Although the Appellants are concerned that the proposed subdivision is unsuitable to the location, the Commission must take some comfort from the fact that pursuant to Section 19.(1) of the Coastal Area Regulations the subdivision approval may be revoked if no lot is conveyed within five years.

19.(1) Where no lot in an approved subdivision has been conveyed within a period of five years from the date of approval of the subdivision, the approval shall be revoked.

Therefore, based on the provisions of the Planning Act Regulations, the Commission finds that although the proposed 19 lot single family residential subdivision in this location may in some ways appear to not be consistent with the goals of the subdivision regulations as set out pursuant to Part V of the Regulations, it is consistent with the provisions of the more recent Coastal Development Policy and the Coastal Area Regulations.

On balance, the Commission finds that in this case, when the Planning Act, the Planning Act Regulations and the relevant principles and policies are considered on the whole, the creation of 19 lots on this parcel of land does not contravene the Regulations.

[22] While the Commission did take comfort in subsection 19(1), a careful reading of Order LA96-05 reveals that the real rationale for its decision was that, while the Commission found some inconsistencies with the principles and policies set out in Part V of the Regulations, the proposed 19 lot subdivision was consistent with the more recent Coastal Development Policy and the Coastal Area Regulations.

[23] As the Coastal Area Regulations were in force at the time the Developer requested the application be reactivated in August 1993 and at the time the present subdivision received preliminary approval in March 1994, the Commission finds that these regulations do apply. While subsection 19(1) of the Coastal Area Regulations may have provided some comfort to the Commission in the past, the Commission's decision in Order LA96-05 was not contingent on the existence of that subsection. Accordingly, the Commission finds that the present subdivision does not contravene the principles and policies of the regulations as a whole which were in effect when preliminary approval was granted on March 3, 1994.

[24] With respect to the evidence and report of the Appellants' expert witness, the Commission notes that the concerns raised are based on the Planning Act Regulations in effect at the time of preliminary approval. However, the expert witness did not address the Coastal Area Regulations. Given the reasoning in Order LA96-05 and the applicability of the Coastal Area Regulations to the present case, the expert's opinion is not inconsistent with the reasoning expressed by the Commission in Order LA96-05.

[25] Upon a review of the various regulations under the Planning Act applicable to the present subdivision, the Commission finds that there is no evidence that the Respondent breached or ignored the technical requirements of these regulations. Although concerns were expressed about possible environmental issues, the Commission does not have jurisdiction under the Environmental Protection Act, R.S.P.E.I. 1988, Cap. E-9. Accordingly, as the requirements under the various regulations of the Planning Act have been met, the appeal is denied.

[26] The Commission does, however, have concerns about the Respondent's present policy of not publishing a notice of approvals issued under the Planning Act. In order for a statutory right to appeal to be meaningful "any person who is dissatisfied", to borrow from the wording of subsection 28(1) of the Planning Act, must have a reasonable opportunity to be aware of a decision. Merely posting approvals on the Respondent's bulletin boards is not sufficient. The Commission therefore directs the Respondent, in future, to regularly publish a notice of decisions made which are subject to the appeal provisions contained in section 28 of the Planning Act.

[27] The Appellants have raised the issue of the type of street lighting utilized by the Developer at the subdivision, with several of the Appellants' witnesses expressing their concerns about light pollution in a rural setting and this matter was also addressed in the report submitted by the Appellants' expert. The Commission notes that lighting issues are currently unregulated. Given the potential for conflict among land owners when high density urban type lighting is utilized in a rural area, the Commission will require the Developer to undertake to install lighting shields on each of the "cobra head" street lights in order to minimize light glare. In the alternative to the installation of light shields, the Developer will be required to replace the existing lighting with full cutoff lighting.

4. Disposition

[28] An Order denying the appeal and requiring the Developer to file a written undertaking to install light shields on all streetlights in the subdivision, or in the alternative, replace the existing lighting with full cutoff lighting, will therefore be issued.

Order

WHEREAS J'Nan and Kirk Brown have appealed a decision of the Minister of Community and Cultural Affairs, dated December 29, 2003;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on April 28, June 18 and June 25, 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.

2. The Developer shall file a written undertaking with the Commission to install light shields on all streetlights in the subdivision, or in the alternative, to replace the existing lighting with full cutoff lighting.

DATED at Charlottetown, Prince Edward Island, this 8th day of September, 2004.

BY THE COMMISSION:

Brian J. McKenna, Vice-Chair

Weston Rose, Commissioner

George MacDonald, 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.