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Order

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Contents

Appearances & Witnesses

Reasons for Order

1.    Introduction

2.    Discussion

3.    Findings

4.    Disposition

Order

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Counsel for the Parties

1.  For the Appellant Fran Whitlock:

Counsel:
Carrie E. Ricker

2.  For the Developer Gerry MacLean

Counsel:
Geoffrey D. Connolly, Q.C

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Reasons for Order

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1.  Introduction

[1]  The Appellant Fran Whitlock, ("the Appellant") has filed an appeal 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).  This appeal concerns a June 3, 2015 decision of the Respondent Community of Lower Montague (the "Community") to approve an application by the Developer Gerry MacLean (the "Developer") for a building permit for a private storage building to be located at 65 Nautical Lane, property number 193714, in the Community of Lower Montague (the "subject property").    

[2]  The Appellant's Notice of Appeal was filed with the Commission by Carrie E. Ricker, Counsel for the Appellant, on June 24, 2015.  

[3]  The Commission received a copy of the Community's file on July 15, 2015.  On July 23, 2015, the Commission received a copy of the Community's Official Plan, dated April 2012, and a copy of the Community's Zoning and Subdivision (Development) Bylaw, dated April 2012.   

[4]  On July 16, 2015, Commission staff contacted the Community's Administrator via the Community's official email address to request a copy of the minutes for the June 3, 2015 meeting of the Community's Council once those minutes became available.  The Commission received a copy of the June 3, 2015 Council minutes from the Community on August 14, 2015.  

[5]  On August 14, 2015, Counsel for the Appellant filed with the Commission a Revised Notice of Appeal and a document titled Pre-Hearing Submissions Filed on Behalf of the Appellant. 

[6]  On August 20, 2015, Geoffrey D. Connolly, Q.C. advised the Commission that he had been contacted by the Developer with respect to this appeal.  On November 27, 2015, Mr. Connolly, as Counsel for the Developer, filed a document titled Reply to the Notice of Appeal. 

[7]  On December 1, 2015, the Commission requested that Counsel for the Appellant file a written response to the Reply to the Notice of Appeal. 

[8]  On December 21, 2015, Counsel for the Appellant filed a document titled Appellant's Reply. 

[9]  In a February 3, 2016 email, the Commission's Appeals Administrator advised counsel for the parties:   

Upon a review of the documents on file, it appears that the facts have been fully set out in the written submissions filed by both counsel and are not in dispute.  The appeal appears to rest primarily on the application and interpretation of the law; in particular, the Community of Lower Montague Zoning & Subdivision (Development) Bylaw, 2012. The record filed indicates that both Counsel for the Appellant and Counsel for the Developer have made complete submissions on the law. 

In these circumstances the Commission would like to proceed to consider and determine the matter as a paper appeal without holding an oral hearing. 

I ask that you confirm that your client agrees with this matter proceeding by way of a paper appeal on the documents that are now on file with the Commission.  In the event that you have objections to the Commission proceeding in this manner, kindly advise me. Please contact me with your response before Wednesday, February 17, 2016 at 4:00 p.m. 

[10]  On February 17, 2016, Counsel for the Appellant advised the Commission Administrator via email: 

I confirm that my client does not object to the above-noted matter proceeding by way of a paper appeal on the documents that are now on file with the Commission. 

[11] On February 18, 2016, Counsel for the Developer advised the Commission's Appeals Administrator via telephone that he was under the belief that the Community was going to file a written response some time ago.  He stated that he would consult with his client and advise the Commission of his client's position. 

[12]  As no response had been received on behalf of the Community, the Commission's Administrator on March 9, 2016 sent an email to Counsel for the Developer and to the Community's Administrator stating: 

Are the Community and the Developers agreeable to the Commission proceeding on a paper basis?  Alternatively, would the Community and the Developers prefer a public oral hearing before the Commission?  

[13]  Counsel for the Developer advised the Commission's Administrator by letter dated March 9, 2016: 

Further to your email in connection with the above-captioned appeal regarding the Commission proceeding by way of paper appeal without holding an oral hearing.  I have reviewed this request with our client and am writing to confirm that we are agreeable to the Commission proceeding by way of a paper appeal based on the documents that are now on file with the Commission.  In the event subsequent submissions are received from either the appellant or the Community, we would like to see such submissions and respond accordingly. 

[14]  Following receipt of the above noted letter, the Commission Administrator referred to the earlier emails and further contacted the Community's Administrator via email dated March 9, 2016: 

Good afternoon, 

Any response [see email threads below] must be made by March 31, 2016.  An email to me is fine.  If you have any questions, please let me know. 

[15]  The Commission has proceeded to determine this appeal without an oral hearing as both the Appellant and the Developer have consented to this approach.  While specific consent was never received from the Community, the Commission considers that the Community's continued silence indicates that the Community is not opposed to the appeal being determined on a paper basis without an oral hearing.

2.  Discussion

Appellant's Submissions

[16 ]  In the Revised Notice of Appeal, Counsel for the Appellant sets out the following grounds for appeal [the crossed out portions were crossed out by the document's author]: 

 

 [17]  In the August 14, 2015 Pre-Hearing Submissions Filed on Behalf of the Appellant, detailed submissions are provided with respect to the grounds for appeal.  The Commission has reviewed these submissions thoroughly.  The following is an excerpt of these submissions pertaining to the 'yard issue' which is a key element of the Appellant's case: 

 

[18]  In the December 21, 2015 Appellant's Reply, Counsel for the Appellant filed additional submissions, some of which are briefly summarized below:

• There is a boundary dispute in relation to the existing right-of-way between the parties. 

• The Appellant had, through legal counsel, advised the Community on July 4, 2014 of concerns in response to the Developer's original request for a permit.  That original request for a permit was denied by the Community and the Appellant was advised of this by letter dated August 13, 2014. 

• When the Developer reapplied, notice of the new application was not provided to the Appellant. 

• The Developer does not have discretion to unilaterally determine the orientation of his property. 

• Construction was well underway on the building before the other building was removed and there appears to have been no action by the Community. 

• The recent removal of the recreational trailer cannot retroactively rectify an improperly issued building permit.  There is no evidence that the trailer was registered as a vehicle for highway use, or that it was registered with the Community in accordance with its Bylaw.  The trailer was located on the subject property for many years prior to its recent removal.  There is a grading and a foundation on which the trailer was located.  The Appellant is concerned that the trailer will return, making it an additional accessory building and one that is to be used for human habitation in violation of the Bylaw. 

• The Appellant is concerned that the Developer intends to have multiple buildings used for human habitation on the subject property. 

[19]  The Appellant requests that the Commission quash the June 3, 2015 permit issued by the Community to the Developer. 

Developer's Submissions

[20]  In the November 27, 2015 Reply to Notice of Appeal filed by Counsel for the Developer, it was submitted that the Appellant improperly challenged the Community's decision to approve the building permit.  The Community followed the process set out in its Bylaw and discharged its duty of procedural fairness.  It was also submitted that the application for a building permit should not be decided anew; rather, deference is owed to the Community absent proof of improper procedure or unfairness.  It was submitted that the shed or accessory building complies with the Bylaw as it is not built within the front yard or flanking side yard of the lot and that there will not be more than two (2) accessory buildings on the subject property. 

[21]  The following submissions from the Reply to Notice of Appeal deal with the 'yard' issue: 

  

[22]  The Developer's Reply to Notice of Appeal also addresses the matter of the recreational trailer.  It was submitted that from time to time a camper trailer had been on the subject property to host guests for brief vacation visits.  The trailer was set on wheels and was not fixed to or supported by land.  It was towed off the property and had been placed in winter storage. The trailer is not an additional accessory building as it is not a structure.  A structure is defined as "any construction building fixed to, supported by or sunk into land or water". 

[23]  Counsel for the Developer requests that the appeal be dismissed. 

The Community's Decision

[24]  While the Community did not file any written submissions, the Community did provide the Commission with a copy of its file and minutes which together serve as the record for its decision.  As part of this record, on June 10, 2015, the Community emailed a letter to the Developer, the substance of which reads: 

This is to inform you that Council has given approval to your application, for a private storage building. 

This approval is subject to the following: 

1. Use of existing Highway Driveway Access only

2. No Portion of the structure may be closer that [sic] 62 feet to ROW or 25 feet from main building.

3. No habitation of building by humans.

4. Private storage use only.

5. The building as shown on plot plan shall be removed.

6. Council's approval may be appealed within 21 days of issue. 

Please contact Council if you have any questions.

3.  Findings

[25]  After a careful review of the record filed by the Community, the submissions filed by Counsel for the Appellant and Counsel for the Developer, and the applicable law, it is the decision of the Commission to deny this appeal. The reasons for the Commission's decision follow. 

[26]  Subsection 28(1.1) of the Planning Act sets out the Commission's jurisdiction with respect to appeals of municipal decisions:  

28.(1.1) Subject to subsections (1.2) to (1.4), any person who is dissatisfied by a decision of the council of a municipality  

(a) that is made in respect of an application by the person, or any other person, under a bylaw for  

(i) a building, development or occupancy permit, 

(ii) a preliminary approval of a subdivision, 

(iii) a final approval of a subdivision; or  

(b) to adopt an amendment to a bylaw, including  

(i) an amendment to a zoning map established in a bylaw, or 

(ii) an amendment to the text of a bylaw,  

may appeal the decision to the Commission by filing with the Commission a notice of appeal. 

[27]  Section 4.24 of the Community's Bylaw deals with the requirements for accessory structures in the Community.  The relevant portions of section 4.24 read as follows: 

         4.24 ACCESSORY STRUCTURES 

Accessory uses, Buildings and Structures shall be permitted on any Lot but shall not: 

1. be used for human habitation except where a Dwelling is a permitted Accessory Use;

2. be located within the front yard or flanking side yard of a Lot;

3. be built closer than five (5.0') feet (1.5 m) to any lot line;

4. except in a commercial Zone or on a farm property exceed eight hundred (800) sq. ft. (80 sq. m) in total floor area or 50% of the total floor area of the main Building on the Lot, whichever is less;

5. be built within fifteen (15') (4.5 m) of the main Building on the Lot;

6. except in a Commercial Zone or on a farm property, exceed two (2) structures, one of which shall be a garden shed not exceeding 200 sq. ft. (20 sq. m.) in total floor area.

7. Exceed 20 feet (6 m.) in height. 

... 

Notwithstanding the above provisions, Council may issue a special development permit for an accessory Structure located within the front yard or flanking side yard of a Lot, where Council is satisfied the Structure will be architecturally compatible with adjacent Structures and no permanent injury would be caused to adjoining properties, subject to such conditions as Council may impose. 

[28]  "Frontage" is defined in section 2.42 of the Bylaw: 

2.42 "Frontage" - means the horizontal distance between the side lot lines bordering on a street and according to the direction of the front of the dwelling or structure. 

[29]  "Street" is described in section 2.94 of the Bylaw: 

         2.94 "Street or Road" - see Highway, Section 2.44 [sic] 

[30]  "Highway" is defined in section 2.45 of the Bylaw: 

2.45 "Highway, Road or Street" - means all the area within the boundary lines of every road, street or right-of-way which is vested in the Province of Prince Edward Island or the municipality and used or intended for use by the general public for the passage of vehicles and includes any bridge over which any such road, street or right-of-way passes. 

[31]  Page 6 of the Appellant's August 14, 2015 Pre-Hearing Submissions  acknowledge that Nautical Lane is a privately owned lane: 

In this case, access to the MacLean Property is by way of a shared, private driveway lane. 

[32]  The Developer's November 27, 2015 Reply notes at page 5, paragraph 15 of that document that Nautical Lane is a private right-of-way which is not vested in the Province of Prince Edward Island or the municipality.  

[33]  An appeal of a municipal decision to issue a building permit must necessarily be concerned with whether the decision to issue the building permit conforms with the requirements of that municipality's bylaw.  While the Community's Bylaw is deficient in not setting out specifically how frontage is determined for a private right-of-way, the Bylaw was created by the Community in its legislative capacity and approved by the Minister responsible for the Planning Act, currently the Minister of Communities, Land and Environment. The Commission's role is to review how the Community applied its Bylaw to the application filed by the Developer.   

[34]  The Commission finds that, as Nautical Lane is a private right-of-way, it is permissible for the Community to determine that the yard adjacent to the water is the front yard and the yard adjacent to the right of way is the rear yard.   The Community's issuance of the June 3, 2015 permit therefore is consistent with the requirement of section 4.24 (2) of the Bylaw; that is to say, an accessory structure shall not be located within the front yard. 

[35]  The Commission finds that the other requirements of section 4.24 of the Bylaw have been met or exceeded by the June 3, 2015 permit and its conditions.  Indeed, the conditions include an enhanced buffer requirement which was to the Appellant's benefit and which may be very prudent, given the Appellant's contention that there is an ongoing dispute with respect to the boundary with respect to the existing right-of-way between the Appellant and the Developer. 

[36]  The Appellant has raised concerns about the Developer being in violation of the building permit as well as concerns about a recreational trailer having been placed and utilized on the property. However, concerns that a permit applicant may not adhere to the requirement and conditions of a municipal permit and concerns that other portions of the Bylaw may have been violated are matters of building permit and bylaw enforcement falling outside the Commission's statutory authority under the Planning Act.  

[37]  For the above reasons, the appeal is denied.

4.  Disposition

[38] An Order denying this appeal follows.

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