Docket: LA04027
Order LA04-12

IN THE MATTER of an appeal by Douglas R. Jenkins of a decision of the Minister of Community and Cultural Affairs, dated August 13, 2004.

BEFORE THE COMMISSION

on Monday, the 22nd day of November, 2004.

Brian J. McKenna, Vice-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       

Douglas R. Jenkins

Witnesses:
Richard Jenkins
Ivy Smith
Katherine Gail Jenkins

2.    For the Respondent

Don Walters

Reasons for Order

1.  Introduction

[1]  This is an appeal filed on September 2, 2004 with the Island Regulatory and Appeals Commission (the Commission) under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the Planning Act) by Douglas R. Jenkins (the Appellant) concerning a decision of the Minister of Community and Cultural Affairs (the Respondent) on August 13, 2004 to advise the Appellant to cease operation, by August 27, 2004, of his commercial business on provincial parcel number 509968 located on the Pownal Road, Route 1A.   

[2]  By way of background, the Appellant had previously applied to the Respondent for a development permit for a private garage.  On May 8, 2003, the Respondent issued Development Permit No. C-107-2003, granting the Appellant permission to erect a non-commercial garage on parcel number 509968.  On January 6, 2004 the Respondent was advised by Heather MacMillan, a neighbour of the Appellant, that the garage was being used to support a commercial business involving the washing and servicing of restaurant filter systems.  In a May 28, 2004 letter, the Respondent advised the Appellant that he would be required to make an application for a change of use from a private to commercial garage if he planned on using the building for commercial purposes.

[3]  After due public notice, the Commission proceeded to hear the present appeal on November 9, 2004.

2.  Discussion

Appellants' Position

[4]  The Appellant takes the position that it is questionable whether the work he does in the garage amounts to running a commercial business.  He notes that the cleaning of filters at his garage only amounts to four to six hours per week.  Most of his work, cleaning ducts etc., is performed "on site".  There are no signs promoting his business on the property, no business traffic and there is no business telephone there.  He states that there is very little noise produced as a result of cleaning the filters.   

[5]  The Appellant states that he intended to apply for a change of use permit.  However, Heather MacMillan would not consent to the change of use.  The Appellant submits that Ms. MacMillan, not being the registered owner of the adjoining lot, should not be allowed to veto or deny consent for operating his business.

[6]  The Appellant requests that the Commission allow the appeal and allow him to continue the operation of his commercial business on parcel 509968.

Respondent's Position

[7]  The Respondent states the permit issued was for a private non-commercial garage and a complaint was received from Ms. MacMillan shortly after the garage was completed.  The Respondent investigated and found that the Appellant was operating a filter cleaning business in the garage.  The Respondent tried to encourage a resolution of the matter.  Subsection 29(2) of the Planning Act Subdivision and Development Regulations (the Regulations) requires the consent of the owner of the adjoining lots to permit a change of use.  However, Ms. MacMillan would not consent to the proposed change of use. 

[8]  The Respondent notes that it may be possible to approve a change of use restricted to the Appellant's specific business of a restaurant filter cleaning operation if Ms. MacMillan would be agreeable to consent to this specified use.  The Respondent is willing to work with the Appellant and Ms. MacMillan to attempt to reach a solution.

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

 3.  Findings

[10]  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.

[11]  Section 29 of the Regulations reads as follows:

29. (1) No person shall deviate from an approved subdivision, including changing the use from the approved use, until a revised plan and application for a change of use has been submitted and approved.

(2) Where a subdivision has received final approval, whether in a single phase or in two or more phases, no change of use from the designated use of any lot shall be permitted unless the owners of the adjoining lots and a majority of the owners of lots conveyed in the approved subdivision have consented in writing. (EC693/00)

(3) For the purpose of determining the opinion of the majority referred to in subsection (2), only one objection or favourable response per lot will be counted.

[12]  Paragraphs 1(e.1), (j.1) and (j.3) of the Regulations read as follows:

(e.1) commercial means the use of a building or lot for the storage, display or sale of goods or services, and includes hotels, motels, inns, or rental cottages;

…

(j.1) 'industrial use' means the use of a building or lot for the storage, distribution, processing, assembly or recycling of wholesale products, goods or materials, or for activities relating to transportation, extraction, manufacturing, construction, warehousing, assembly or general repair;

…

(j.3) 'light industrial use' means use of land or buildings for fabrication, manufacturing, assembly, treatment or warehousing of goods, but does not include industrial processing or other process which may result in the creation of hazardous or offensive conditions related to noise, odour, smoke or effluent;

[13]  The Commission notes that it must apply the Planning Act and the Regulations as they are written.  The Commission does not have the authority to amend legislation.

[14]  Based on the evidence before the Commission, the Commission finds that the Appellant was carrying out a commercial or, perhaps more in keeping with the definitions cited above, a light industrial use, on property 509968 contrary to the Regulations.  Section 29 sets out the requirements to obtain a change of use.  This includes a requirement that the owners of the adjoining lots and a majority of the owners of lots conveyed in the approved subdivision consent in writing.  The Appellant had applied in 2003 for a development permit for a private garage and the permit that was issued by the Respondent clearly specifies that the garage is for "non-commercial" use. 

[15]  The Commission finds that the Respondent correctly applied the Regulations in making its August 13, 2004 decision to require the Appellant to cease operating his business from the garage.  Furthermore, the requirements set out in the Regulations for a change of use have not been met as not all owners of the adjoining lots have consented to the requested change of use.  While the Appellant's submission that Heather MacMillan is not the registered owner may be correct, the onus is on the Appellant to obtain the consent of the owner of the adjoining property.  Therefore, the appeal is denied.

[16]  In making this decision, the Commission is mindful that a change of use may lawfully occur if the consent requirements set forth under section 29 of the Regulations are met.  Accordingly, the Commission wishes to point out that this Order does not prevent the parties from further exploring the possibility of obtaining the freely given consent required under section 29 of the Regulations.

4.  Disposition

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

Order

WHEREAS  Douglas R. Jenkins has appealed a decision of the Minister of Community and Cultural Affairs dated August 13, 2004;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on November 9, 2004 after 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 denied.

DATED at Charlottetown, Prince Edward Island, this 22nd day of November, 2004.

BY THE COMMISSION:

Brian J. McKenna, Vice-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.