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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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Appearances & Witnesses

1.  For the Appellant Donna Stringer

Counsel:
    John D. Stringer, Q.C.

Witnesses:
    Donna Stringer
    Leland Wood

2.  For the Respondent Minister of Communities, Land and Environment

Counsel:
    Robert MacNevin

Witness:
    Jay Carr
 

3.  For the Developers Betty Ann Bryanton and Gareth Llewelleyn

Counsel:
    Steven Forbes

Witness:
    Betty Ann Bryanton
 

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Reasons for Order

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1. Introduction

[1]  On August 19, 2015, the Appellant Donna Stringer (the "Appellant") 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").   

[2]  The Appellant appealed an August 12, 2015 decision of the Respondent Minister of Communities, Land and Environment (the "Minister") granting Development Permit No. M-2015-0087 ("Permit 87") and Development Permit No. M-2015-0088 ("Permit 88") to the Developers Betty Ann Bryanton and Gareth Llewelleyn (the "Developers") to change the permitted use of an existing non-commercial storage building to a summer cottage (Permit 87)  and to relocate three non-commercial storage buildings (Permit 88) on Provincial Parcel Number 931741, located on the south side of 158 Paradise Drive, in the Community of Little Pond (the "subject property"). 

[3]  The Commission forwarded letters to the Minister and the Respondents advising of the Appeal and requesting that the Minister provide a copy of the development application file. On September 4, 2015, a copy of the application file was received and forwarded via email to the Appellant and the Developers. 

[4]  On September 15, 2015, Commission received a letter submission from Robert MacNevin, legal counsel for the Minister.  Mr. MacNevin acknowledged that "Evidently the non-commercial storage buildings are used, from time to time, to accommodate people who use them to sleep at night during the summer months".  Mr. MacNevin further advised that as these "non-commercial storage buildings are not hooked up to water or sewer systems, they are not considered to be "dwellings".  He further submitted that "There was nothing in the Planning Act Subdivision and Development Regulations that regulate either the number or use of non-commercial storage buildings".  Mr. MacNevin submitted that "There was no basis for the appeal to be successful".

[5]  On September 18, 2015, the Commission's Appeals Administrator emailed the parties to facilitate the filing of written submissions and noting that the Commission was prepared to hear the appeal as early as November 2015.

[6]  Submissions from Appellant's Counsel were received by the Commission on October 13, 2015.  Submissions were received from the Developers on November 2, 2015.

[7]  On December 9, 2015, counsel for the Minister provided a further submission by letter, departing from the original position taken in his September 15, 2015 letter, now stating that "It is the Department's position that non-commercial storage buildings, which is what Permit No. N-2015-0088 allows, are not intended to be used as sleeping quarters, or "bunkies"." [emphasis added] He further submitted that there was a gap in the Subdivision and Development Regulations that has been recognized by the Department and he advised that the Department "Will be creating Regulations to specifically address this issue in the near future, and he noted that the regulatory changes will be made in the new year, and as such I suggest that this appeal be put on hold until the new Regulations come into force.   At that time the Department officials will be in a position to determine if Ms. Bryanton's units are in compliance with the new Regulations."  In response to this submission the Appellant's Counsel responded noting that statutes and Regulations are not to be construed as having retrospective operation unless they are expressly or by necessary implication required in the language of the regulation.  He noted that "It is the view of the Appellant that any retroactive or retrospective future legislation would be prejudicial to the rights of the Appellant, thereby giving rise to a presumption against retroactivity."  He requested that the appeal proceed to a public hearing to have the matter adjudicated.

[8]    On January 15, 2016, the Commission advised the parties that the appeal would proceed to a hearing and invited the parties to indicate their available dates.  After consulting with the parties, the Commission scheduled the appeal to be heard on June 9 and 10, 2016.

[9]    On March 15, 2016, Steven Forbes advised the Commission that he would be representing the Developers.  On March 18, 2016, the Commission received a letter from Mr. Forbes requesting a change in the hearing date to July 2016.  Mr. Forbes also requested the opportunity to file written submissions.  On March 22, 2016, John D. Stringer, Q.C., Counsel for the Appellant, advised the Commission that he did not object to a July or August hearing.  On March 22, 2016, the Commission's Appeals Administrator contacted counsel for the three parties to encourage the parties to reflect on the possibility of alternative dispute resolution ("ADR") and offer the Commission's assistance in providing ADR services.  Subsequently all parties and the Commission agreed to hearing dates of July 21 and 22, 2016.  Dates for filing written submissions and rebuttal submissions were also agreed to.

[10]    Following the receipt of the various written submissions, Counsel for the Appellant canvassed counsel for the other parties inquiring whether there was interest in pursuing ADR.  By June 3, 2016, all counsel had expressed a willingness to participate in ADR.

[11]    With the agreement of all parties and their legal counsel, ADR was held on the morning of July 21, 2016 with the Commission's Appeals Administrator as mediator.  The parties were unable to reach a mediated solution and requested that the appeal be heard by the Commission.

[12]    The Commission heard the appeal commencing on the afternoon of July 21, 2016.  Legal counsel for all three parties filed an Agreed Book of Documents which was entered as Exhibit E-1.  The hearing concluded on the morning of July 22, 2016.

2.  Discussion

Appellant's Testimony and Submissions

[13]    The Appellant Donna Stringer ("Mrs. Stringer") testified that she purchased her property in the autumn of 2007.  Mrs. Stringer's property is located adjacent to the subject property.  At the time Mrs. Stringer purchased her property, the Developers had a shed on their property and also placed a tent and a dining tent on the property for two to three weeks each year.  In poor weather, the Developers slept in the shed.

[14]    Mrs. Stringer testified that her cottage contains seven rooms including four bedrooms.  The Appellant provided an aerial photo of the cottages on Paradise Drive (Tab 27 of Exhibit E-1).  The aerial photo has been annotated to insert descriptions of the ownership of the cottages and the placement of the "bunkies".  The photo shows a total of five cottages, three of which are the size of the Appellant's, one which is somewhat smaller and the Developer's converted shed cottage which is substantially smaller than the others.

[15]    Mrs. Stringer testified that on July 20, 2015 a port-a-pottie or free standing portable outdoor toilet enclosure was delivered to the subject property.  The next day a number of workers arrived with one shed and started putting in stakes where the shed was to be placed.  The second shed arrived the next day.  The sheds were put in place and windows were installed in the sheds to allow for a view of the water.  Mrs. Stringer testified that the Developers informed her that they were just sheds.  However, Mrs. Stringer could view the workers trying to put queen size air mattresses into the sheds.  She stated that when she questioned the Developers on what permits they had obtained to be allowed to put the sheds on the property, the Developers responded that they did not need permits.  The Appellant checked with Leland Wood of the Department of Communities, Land and Environment and he advised that no permits had been issued.  Mrs. Stringer advised that a few days later after the initial installation the shed that was closest to the water was moved and the workmen began setting in pegs for the placement of a third shed.  Pegs for a third shed were later removed.

[16]    Mrs. Stringer testified that when she spoke to Leland Wood at a later time he advised her that the permits were in fact granted, directed her to the Planning website and told her that in order to get information on the permits issued to the Developers, she would have to launch an appeal to the Commission under the Planning Act.  When she received the file as part of the appeal process, she was surprised to learn that the original shed that had been on the property was now approved through Permit 87 as a cottage.  Mrs. Stringer indicated that she has a concern over the number of accessory buildings being placed on this property and was concerned that more sheds were going to be placed on the property.  She also noted that to her knowledge no septic system was ever installed on the Developers' property.

[17]    Under cross-examination, Mrs. Stringer acknowledged that the sheds did not impede her view of the water and that, to date, her safety and security were not compromised by the presence of the sheds.  However, Mrs. Stringer did note that in her view the Developers and the Developers' guests did compromise safety and security as there were no sanitary facilities on the property and she questioned the cooking and other sanitary facilities where there was no proper disposal.  Under cross-examination when she was questioned about her concerns about more sheds, she testified that originally there was pegging put in the ground for four sheds, but in the end only two sheds were actually put on the property.

[18]    Leland Wood ("Mr. Wood"), is a safety standards officer employed by the Minister.  Mr. Wood was called to testify by Appellant's Counsel.  Mr. Wood testified that he has worked for the Minister first as a property development officer and then as a safety standards officer, for the past 13 years.  He is licensed as a septic inspector.  Mr. Wood is not a land use planner.  He testified a summer student working at his office had taken a building permit application for two "bunkies" from Betty Ann Bryanton ("Ms. Bryanton") who is one of the Developers.  Mr. Wood testified that he spoke with Ms. Bryanton who confirmed that she was seeking a permit for "bunkies".  Mr. Wood testified that the original application for the "bunkies" was refused for the reason that there was no dwelling or cottage on the property at the time of the application. 

[19]    Mr. Wood testified that he informed Ms. Bryanton that unless the first storage shed on the property was subject to a change of use to a dwelling, there could not be any other accessory buildings placed on her property.  Mr. Wood informed Ms. Bryanton that there could only be one dwelling per lot.  Mr. Wood testified that he informed her that a septic permit would be required in order to change the original shed to a cottage.  He noted that it was a paper application and he did not visit the subject property.  He testified that without the original shed being approved through a change of use to a cottage the two additional sheds could not be approved as the "bunkies" were considered to be accessory buildings.  He noted that the term "bunkies" was used in the Developer's application.

[20]    When asked if 20 "bunkies" would be permitted on the subject property, Mr. Wood replied that approving that many would be questionable as that would be a large number for one building lot.  He acknowledged that the Regulations do not specify how many would be permissible and noted that the number allowed is "discretionary".  He stated that "lots of people have four storage sheds".  Mr. Wood testified that "bunkies' are not permitted to be used as accommodations because there is no septic system connected to the "bunkies".  When asked whether you could live in a "bunkie" he replied "No".  Mr. Wood testified that the original application was for "bunkies" and he told the applicant that they could not have "bunkies" and he suggested that the application be changed to a request for two non-commercial storage buildings instead.

[21]    Mr. Wood testified that a building may be approved as a cottage if there is a septic permit, that there is no time limit on septic approval, no system is first required and no occupancy permit is required.  He stated that with regard to a septic system, staff do not know if its installed as the building is not inspected and the Department does not follow-up to determine whether a septic system has been installed.  He stated that the Regulations do not specify a minimum size for a cottage.

[22]    Under cross-examination from Counsel for the Minister, Mr. Wood clarified that site inspections are not performed for every development permit as resources are not sufficient to do so. 

[23]    Under cross-examination from Counsel for the Developers, Mr. Wood clarified that Jay Carr directed him to approve the "bunkies" as non-commercial storage buildings with the condition attached to Permit 88 that they were not to be connected to water or sewer.

[24]    Counsel for the Appellant submitted that the appeal is against the Minister's decision to issue Permit 87 and Permit 88.  He submitted that there is little disagreement with respect to the facts.  He submitted that where the parties do differ is on the interpretation of the Planning Act and the Planning Act Subdivision and Development Regulations (the "Regulations").   He submitted that the Regulations do not support the issuance of either permit.  Highlights of his oral submissions include the following:

• The June 26, 2006 permit application for the original storage shed had the annotation "future cottage many years from now".  Exhibit E-1, Tab 19, page 4 contains a reference to "bona fide cottage" which suggests that the Developers do not consider the original shed to be a true cottage.  The change of use application which resulted in the issuance of Permit 87 identified the original shed which was changed to a cottage as being 12 by 14 feet for a square footage of 168 square feet.
  

• The original shed, now deemed to be a cottage, does not have a sewage disposal system.  All that was required was approval of a septic permit form.  That paper approval was issued about one year ago yet no system has been installed and the Developer has no present intention of installing a septic system.  However, such a system is the underpinning for the change of use application.
  

• Exhibit E-1, Tab 18, provides photographs of four structures: the original shed or "cottage", a small plastic storage shed, a shed used as a "bunkie" and another shed used as a "bunkie".
  

• No site inspection occurred for either the change of use Permit 87 or the approval of the "bunkies" Permit 88.
  

• Past decisions of the Commission have emphasized a need for clear wording, objective criteria and the avoidance of arbitrary discretion.
  

• The definition of "dwelling" under the Regulations is relevant while the definition of dwelling unit is not.
  

• Granting the permit after locating the structures on the property is a contravention of Sec. 31 of the Act.
  

• The government did not proceed properly, there is no current septic system on the property, there was no site inspection done to determine whether the structures met the cottage requirements, that both the Developers and government personnel seemed to take the position that, with septic systems, all that is required is a permit, not the installation of the system itself.
  

• The sewage disposal system to be installed must be the system that was approved and for which a permit was issued as this is the basis for granting a change of use to a cottage under Permit 87.
  

• Sec. 42(1) of the Planning Act states that there cannot be more than one building used as a dwelling on a lot and that these terms are defined in the Act.  This provision limits the ability to construct multiple buildings and dwellings and have one lot sprinkled with numerous "bunkies".
  

• "Bunkies" meet the definition of dwelling as set out in the Act.

[25]    Counsel for the Appellant requested that the Commission revoke both Permit 87 and Permit 88 and require the two "bunkies" to be removed.

Testimony and Submissions on behalf of the Minister

[26]  Jay Carr ("Mr. Carr") is the Safety Standards Chief for the Minister.  Mr. Carr is not a land use planner.  Mr. Carr testified that he deals with the more "out of the ordinary" files.  He testified that the Department will not issue permits for "bunkies", they can't, as they are not provided for in the Regulations.  The Regulations do provide for permits for non-commercial storage buildings, that are not dwelling units.  The Regulations do not state what non-commercial storage buildings may be used for and nothing in the Regulations prevent sleeping in a non-commercial storage building.  Mr. Carr noted that the Minister's staff now has one or two inquiries per year about "bunkies" and the matter is now on the Minister's "radar" and it is expected that in the future the Regulations will be amended to address "bunkies".

[27]    Mr. Carr noted that the present matter involves three sheds on the subject property, which is a relatively large lot, and in his opinion at the time it would not have been referred to Planning for consideration for detrimental impact.  He advised that as of two months prior to the date of giving his testimony the Department now has the safety standards officers under the Planning Division and that the Department was recently instructed after a decision of this Commission in another matter to have their personnel consult more with land use planners in the Department.  He stated that previously it was the environmental aspects that were the focus of the Department in approving such permit applications, but now land use planners are also brought in and the planning aspect to an application needs to be considered.  He stated that having three sheds on one lot was, in hindsight, not properly based on sound planning principles and if the application were received today land use planners in the Department would be consulted.

[28]    Mr. Carr testified that the Regulations do not set out minimum size standards for a cottage.  He noted that to constitute a dwelling unit a kitchen and bathroom is typically required.

[29]    Mr. Carr explained that licensed septic contractors design a system, buy registered documents, fill the documents out, send the documents back to the Minister's staff and are required to notify the minister's staff when the system is going to be installed.  The Minister's staff does not inspect every system but do random inspection audits.  He testified that if an audit is done and they find a system that has not been installed then they proceed to enforce the septic tank permit.

[30]    Under cross-examination from Counsel for the Appellant, Mr. Carr testified that the application filed by the Developers was for "bunkies" but the permit issued was for non-commercial storage buildings.  Mr. Carr stated that non-commercial storage buildings are accessory buildings and must be accessory to a main use.  Mr. Carr also reiterated that there is no minimum size requirement for a building to be approved as a cottage.  When asked what the Department would do if they determined that no septic system was installed as in accordance with the permit, Mr. Carr testified that a letter would be provided providing one month to install the system and that if nothing was done then the Department would issue an order providing one month to install the system.  Further enforcement steps could be taken including pulling septic tank permit if the work was not conducted.

[31]    Under cross-examination from Counsel for the Developers, Mr. Carr stated that the definitions of a "dwelling" and a "dwelling unit" are considered by the Minister's staff to be essentially the same but they are technically separate definitions. 

[32]   Under questioning from the Commission's Chair, Mr. Carr stated that internal policy now requires planners to be consulted in these type of circumstances.  Mr. Carr acknowledged that sound planning principles apply to the Planning Act and the Regulations. Mr. Carr testified that previously sound planning principles were far down on the list of considerations with applications such as these.  As of the date of the hearing he confirmed that sound planning principles are now on the top of the list of considerations that must be dealt with.  With respect to the consideration of premature development, Mr. Carr stated that premature development mostly applies to subdivision matters but could also apply with respect to the building of rental cottages.

[33]    Counsel for the Minister, departing again from the previous written submission of December 9, 2015 where it was clearly stated that commercial storage buildings were not intended to be used as sleeping quarters or "bunkies", submitted that the use of non-commercial storage buildings as "bunkies" was not prohibited and as such there was no basis to allow the appeal and rescind the permits.  Counsel for the Minister presented further oral submissions in support of the Minister's decisions, highlights of which include the following:

• There is nothing in the Planning Act or the Regulations to prohibit the storage of people in non-commercial storage buildings.
  

• These bunkies might only be used a handful of times per twelve-month period.
  

• The bunkies were unfinished inside and provided protection from the rain.
  

• It would be absurd to consider these structures to be dwellings.  By way of example, if someone fell asleep in a gazebo, would that fact make the gazebo a dwelling?
  

• It was not warranted to send the matter to the Minister's planners.
  

• "Bunkies" are a new phenomenon in Prince Edward Island and new Regulations are being considered to address them.
  

• Sound planning principles are now, as of the date of this hearing, being used in development applications by the Department.
  

• Having this number of storage sheds on a property is not unusual, twenty such sheds would be unusual, but here the number involved was not enough to trigger any kind of a planning review.
  

• "Bunkies" cannot be considered to be dwellings as defined in the Act.
  

• Sec. 9 of the Act is a saving provision that allows permits to be issued where development occurs and it is then determined that an application should have been applied for.

[34]   Counsel for the Minister submitted that Permit 87 and Permit 88 should be upheld and the appeal denied.

Developers' Testimony and Submissions

[35]  Betty Ann Bryanton ("Ms. Bryanton") is the co-owner of the subject property.  She purchased the property in 2003-2004.  Ms. Bryanton told the Commission that she resides in Ontario.  Ms. Bryanton testified that she was born and raised on Prince Edward Island and wanted a summer cottage "spot".  She visits the subject property a minimum of a week per year to a maximum of five weeks per year, with the average visit being two to three weeks.

[36]    Ms. Bryanton told the Commission that at first she had a tent on the property and went to Sally's Beach to use the washroom facilities there.  Ms. Bryanton stated that she needed a well and a building for the well.  In 2006 storage shed #1 was placed on the property and she tented next to the building, with the building itself being used to store "our stuff" (e.g. camping gear).  There is now a full kitchen in shed #1.  One year prior to the application for Permit 87 and Permit 88 an eight foot by eight-foot shed was put up.  Prior to receiving the septic permit a portable chemical toilet was used.

[37]   Ms. Bryanton testified that Leland Wood helped her with the applications and that she met him to ensure that they complied with all of the set-back requirements and placements.  After consulting him she ended up moving one of the placements of the "bunkie" further back up on the property as she was advised that it was not placed properly.  Draft applications were prepared and they were then reviewed by Mr. Wood and that was when Mr. Wood told her to correct the placement for the lower "bunkie".  She testified that she had told Mr. Wood that she bought sheds hoping that people would be able to stay in them.  Mr. Wood, however, advised her that there are no "bunkies" permitted in PEI.  She was told that only non-commercial accessory buildings could be used and that fit best for her as their plan was to use the "bunkies" as storage as well.  She testified that when it came to the placement of the shed, she placed them on the left side of her property away from the Stringer's property and out of view of their cottage so that there would be privacy for anyone who stayed in the "bunkies".  She testified that she never intended to have four "bunkies" on the property, only two "bunkies".

[38]    Ms. Bryanton testified that the "bunkies" are small pre-built sheds that were placed on the subject property and were then upgraded with vinyl siding and windows.  The "bunkies" would allow her guests to sleep in them rather than in tents when it was raining.  The "bunkies" do not have running water or electricity.  An air mattress is used for sleeping.  The original shed has a kitchen and waste is taken care of.  The change of use for the original shed is representative of what it is.  In the summer of 2015 there were more people at the subject property due to the activity of placing and upgrading the sheds and an outside portable toilet was used.  The "bunkies" are not presently rented out and she testified that she has no intention to rent out the "bunkies".  When questioned Ms. Bryanton testified that she did not anticipate putting anymore "bunkies" on the lot.

[39]    Under cross-examination by Counsel for the Appellant, Ms. Bryanton testified that she would consider using an outside portable toilet again as she had discovered that it was much more convenient than using the chemical toilet located in the original shed, now the cottage.  She has not ordered an outside portable toilet so far this year.  Ms. Bryanton testified that the cost of installing a septic system would exceed the benefit of such a system.  She maintained that a septic system was not required; rather only a permit for such system.  She stated that composting toilets were something she was looking into.  Waste water from washing dishes, known as "greywater", goes through a trough and is drained underneath into gravel and goes into the ground.

[40]    Ms. Bryanton testified that the change of use for the original shed was filed at Mr. Wood's behest.  When not used for sleeping, the bunkies are also used for seasonal storage of items such as a picnic table, wheel barrow, shovels, rakes, chairs etc. 

[41]   Under re-direct examination from Counsel for the Developers, Ms. Bryanton testified that she is willing to investigate alternate waste disposal methods with the Minister's staff.

[42]    In response to questions from the Commission panel, Ms. Bryanton testified that she never had any intention of installing a septic system for two weeks per year use.  She then added that she would install such a system if she had to, but she would prefer to utilize a composting toilet.  Ms. Bryanton confirmed that the "bunkies" were unfinished on the inside and had standard shed type doors.

[43]    Counsel for the Developers presented oral submissions in favour of upholding Permit 87 and Permit 88.  These oral submissions include the following points:

• With respect to Permit 87, the change of use permit for the original shed now a cottage, a change of use represents an authorization to do rather than a certification of what has been done.  Ms. Bryanton has testified that she will consult with the Minister's staff to deal with alternative options to deal with waste and if necessary, she is open to installing a septic system.
  

• Both Permit 87 and Permit 88 exist for a period of twenty-four months from the date of issue.  As that time period has not passed yet, there is no issue of non-compliance today.
  

• With respect to Permit 88, that permit is for three non-commercial storage buildings.  Of these three buildings, two are used as "bunkies" for at most ten days per year.  At all other times, they are used for storage.  The mere fact that an air mattress is placed on the floor for a few days per year does not turn a shed into a dwelling.
  

• In this matter there are only two small buildings being considered as bunkies and this would not be of a sufficient degree to constitute a detrimental impact.  Therefore, there is no need to have the application evaluated by the Minister's planning staff.
  

• Bunkies are not a prohibited use and there would need to be clear and express wording to prohibit using non-commercial storage buildings as bunkies.  A right to restrict should be interpreted narrowly while a right to permit should be interpreted broadly.  There is no clear wording to prohibit the use of these buildings as bunkies.

• With respect to the definitions of dwelling and dwelling unit: a dwelling is a home, apartment building, a duplex etc. while a dwelling unit is a base unit such as an apartment in an apartment building.  Thus, the definition of dwelling and dwelling unit, which are found in the same section of the Regulations, should be applied in the same way.

• The Developers contend that both Permit 87 and Permit 88 were validly granted.  However, in the event that the appeal was successful, what would be an appropriate remedy?  Permit 87 is a matter of compliance only.  As for Permit 88, if the two non-commercial storage buildings used as bunkies were considered to be dwellings, then the only proper remedy would be to prohibit their use for sleeping as there would be no reason not to use them for non-commercial storage.

[44]   Counsel for the Minister submitted that Permit 87 and Permit 88 should be upheld and the appeal denied.

3.  Findings

[45]  After a careful review of all documents in evidence, the oral testimony of the witnesses, the written and oral submissions of counsel for the parties and the applicable law, it is the decision of the Commission to allow the appeal. 

[46]  Subsection 28.(1) of the Planning Act sets out the Commission's jurisdiction to hear this appeal of both Permit 87 as a change of use permit and Permit 88 as a development permit:

28. (1) Subject to subsections (1.2) to (4), any person who is dissatisfied by a decision of the Minister that is made in respect of an application by the person, or any other person, pursuant to the Regulations for

        (a) a development permit;
        (b) a preliminary approval of a subdivision or a resort development;
        (c) a final approval of a subdivision;
        (d) the approval of a change of use; or
        (e) any other authorization or approval that the Minister may grant or issue under the Regulations,

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

[47]  The objects of the Planning Act are set out in section 2:

        2. The objects of this Act are

        (a) to provide for efficient planning at the provincial and municipal level;
        (b) to encourage the orderly and efficient development of public services;
        (c) to protect the unique environment of the province;
        (d) to provide effective means for resolving conflicts respecting land use;
        (e) to provide the opportunity for public participation in the planning process.  1988,c.4,s.2.

[48]  The following definitions found within section 1 of the Regulations are noteworthy:

(a) "accessory building" means a building whose use is incidental and subordinate to, and consistent with, the main or approved use of the lot upon which the building is located;

...

(c) "building" means any structure having a roof supported by columns or walls intended for the shelter, housing or enclosure of any person, animal, or chattel, and includes a mini home or mobile home;

...

(d) "change of use" means

(i)  altering the class of use of a parcel of land from one class to another, recognizing as standard classes residential, commercial, industrial, resource (including agriculture, forestry and fisheries), recreational and institutional uses, or
(ii)   a material increase in the intensity of the use of a building, within a specific class of use as described in subclause (i), including an increase in the number of dwelling units within a building;

...

(f.3) "detrimental impact" means any loss or harm suffered in person or property in matters related to public health, public safety, protection of the natural environment and surrounding land uses, but does not include potential effects of new subdivisions, buildings or developments with regard to

(i) real property value;
(ii) competition with existing businesses;
(iii) viewscapes; or
(iv) development approved pursuant to subsection 9(1) of the Environmental Protection Act;

...

(g.1) "dwelling" means a building or portion thereof designed, arranged or intended for residential occupancy, and

(i) "dwelling unit" means one or more rooms used or intended for domestic use of one or more individuals living as a single housekeeping unit with cooking and toilet facilities,
(ii) "single unit dwelling" means a building containing one dwelling unit and does not include mobile homes, but does include mini homes,

...

(v.2) "summer cottage" means a single unit dwelling that is intended to be occupied primarily during the summer months;

[49]  At the hearing, Counsel for the Minister took the position that the Minister was correct in issuing both Permit 87 and Permit 88.  However, Counsel for the Minister had taken a different position in his December 9, 2015 letter to the Commission, as he stated that it was the Department's position that non-commercial storage buildings are not intended to be used as sleeping quarters or bunkies.  He advised that Regulations to address the issue would be prepared in the near future and requested that the appeal be put "on hold" until the new Regulations come into force.

[50]  For the record, the appeal was not held in abeyance and there is no evidence before the Commission that such regulatory additions have been made.

[51]  From a review of the file and the testimony of Mr. Carr, it is clear that the Minister did not consult with a professional land use planner prior to issuing either Permit 87 or Permit 88.  This causes the Commission concern, especially where there are compelling reasons to seek the expertise of a professional planner.  The testimony of Mr. Carr also indicates that the Minister's internal policy now provides for staff planning professionals to be consulted on applications such as those filed by the Developers.  The Commission commends the Minister for this change in policy to now use land use planners on these types of applications.

[52]  In the context of municipal planning decisions, the Commission has often utilized a two-part test to guide its consideration of an appeal.  The Commission is of the view that the same test should be applied to appealable Ministerial decisions made under the Planning Act and the Regulations.  In the context of Ministerial decisions, that test is:

• Whether the land use planning authority, in this case the Minister, followed the proper process and procedure as required in the Regulations, in the Planning Act and in the law in general, including the principles of natural justice and fairness, in making a decision on an application for a development permit, including a change of use permit; and

• Whether the Minister's decisions with respect to the applications for development and the change of use have merit based on sound planning principles within the field of land use planning and as identified in the objects of the Planning Act.

The Commission's Consideration of Permit 87

[53]    Permit 87 grants permission to the Developers to change the use of a non-commercial storage building previously permitted by permit K-095-2006 to a summer cottage on parcel number 931741 located on the south side of 158 Paradise Drive in the Community of Little Pond.  The permit is dated August 12, 2015 and expires twenty-four (24) months from the date of issue.  The permit is subject to the structure being erected in accordance with the approved application sketch and compliance with the Environmental Protection Act's 15 metre watercourse/wetland buffer zone.

[54]    Permit 87 is issued under the authority of the Regulations and purports to change an existing non-commercial storage building to a summer cottage.  While a summer cottage is a defined term under the Regulations, a non-commercial storage building is not defined in the Regulations.  The definition of a summer cottage references the meaning of a single unit dwelling which in turn references a dwelling unit.  The definition of dwelling unit specifies a single housekeeping unit with cooking and toilet facilities.  The testimony of Ms. Bryanton indicates that there is a kitchen, with wastewater from washing dishes going through a trough into a gravelled area and into the ground.  There is also a chemical toilet and Ms. Bryanton has considered using an outside portable toilet in the future as having used it in the summer of 2015 proved more convenient than using a chemical toilet.

[55]   The evidence given at the hearing was that although a septic system is required for a dwelling unit to be considered a cottage, such a system did not have to be installed, but that all that is required is that a septic permit be obtained.  This is an absurdity.  While possession of such a permit may facilitate proceeding with the construction of a cottage, mere possession of a septic system permit, without installing the septic system itself, does not legitimately allow for the use of a cottage.  The septic system must be installed, inspected and approved before the landowners may occupy their cottage.  The presence of an approved septic system is necessary to protect the environment.  The absence of the installation of an approved septic system places the environment at risk.

[56]    The Commission does not endorse the actions of a property owner taking it upon themselves to install a greywater drainage system that has not been inspected and approved by the Minister's environment experts.  It should be the Minister's environmental experts, not the property owner, who decides what is acceptable.  The septic system, which is a condition required under Permit 87, must be used for greywater disposal as well.

[57]  The Minister's staff did not perform a site inspection of the original 12 by 14-foot building prior to issuing Permit 87.  In the absence of such an inspection, and given the testimony of Ms. Bryanton, the Commission finds that the 12 by 14-foot converted shed does not meet the definition of a "cottage" or a "dwelling unit" as set out in the Regulations without the installation of toilet facilities in the unit itself and without the installation of an approved septic system.  The Commission, therefore, finds that the Minister did not follow an acceptable proper process of procedure as required in the Regulations in ensuring that the building that was to be subject to a change of use, complied with and met the Regulations.  The Minister therefore contravened the first part of the two-part test as enumerated in paragraph 52.

[58]    The second part of the two-part test enumerated in paragraph 52 requires that the Minister's decision for this change of use have merit based on sound planning principles within the field of land use planning as identified in the objects of the Planning Act. The evidence of the Minister's staff is that at the time this application was dealt with sound planning principles were far down on the list of considerations.  As of the date of the hearing, the staff confirmed that sound planning principles are now on the top of the list of considerations that must be dealt with.  This Commission has found, in numerous past decisions, that there must be evidence that a proposed development or change of use is consistent with sound planning principles (Biovectra v. City of Charlottetown, Order LA12-06).  In determining whether or not a development proposal should go forward, the Minister must make an examination beyond the strict conformity with the Regulations and must consider sound planning principles including, but not limited to, the quality of architectural design, compatibility with architectural character of adjacent development, site development principles for the placement of structures and a thorough assessment of whether the development is consistent with sound planning principles (Atlantis Health Spa Ltd. V. City of Charlottetown, Order LA12-02).  The alteration of the character and appearance of the neighbourhood must also not be contrary to sound planning principles (Compton v. Town of Stratford, Order LA07-05).

[59]   The evidence is irrefutable and the Commission finds that the Minister did not consider whether sound planning principles supported a decision to approve the change of use of the 12 by 14-foot building from "non-commercial storage building" to a summer cottage.  As such, the Minister failed to demonstrate adherence to a key object of the Planning Act, namely efficient planning based on sound planning principles at the provincial level, and accordingly, the Commission hereby quashes Permit No. M-2015-0087.

The Commission's Consideration of Permit 88

[60]    Permit 88 grants permission to the Developer Betty Ann Bryanton to relocate three non-commercial storage buildings located on parcel number 931741 located on the south side of 158 Paradise Drive in the Community of Little Pond.  The permit is dated August 12, 2015 and expires twenty-four (24) months from the date of issue.  The permit is subject to the structure being erected in accordance with the approved application sketch, compliance with the Environmental Protection Act's 15 metre watercourse/wetland buffer zone, and that none of the non-commercial storage buildings are to be serviced with sewer or water.

[61]    Once again, the terminology of "non-commercial storage buildings" is neither defined nor referred to in the Regulations, although the term "accessory building" is both defined and referred to in the Regulations.  It is not apparent from the face of Permit 88 that the non-commercial storage buildings are approved as sleeping quarters or "bunkies".  It was clear from the evidence that the Minister's staff were well aware that these sheds were bought for and intended to be used so that people could stay in them.  It was the Minister's staff that advised that this was not permissible, but that the shed could fall within the Regulations and be permitted to be placed on the property as a "non-commercial storage building".  By accepting an application, knowing full well that the intended use is not what is stated on the application, the Minister therefore breached the first part of the two-part test and did not follow proper process and handling of the application.

[62]   The evidence before the Commission is that at no time did anyone in the Department seek the opinion of a professional land use planner with respect to the application which resulted in Permit 88.

[63]    The objects of the Planning Act require: efficient planning, protection of the Province's unique environment, an effective means for resolving land use conflict and to provide the opportunity for public participation in the planning process. The Commission expects decisions made under the Planning Act and the Regulations to not only follow the legislative requirements but also be in accordance with sound planning principles.  Adherence to sound planning principles is especially important where, as here, the legislation has not addressed a particular type of development.  Sound planning principles could consider not only whether "bunkies" would or would not be permitted, but also, if deemed to be permissible, determine the number permitted on a parcel, size, location, appearance, consultation with adjacent property owners and other such factors.

[64]  The Commission reiterates, as set out in paragraph 58 herein, that this type of development must have merit based on sound planning principles.  Adherence to sound planning principles is especially important where there are applications to place a number of buildings on a single lot all of which, for the most part, would be used as "bunkies".  Sound planning principles would determine whether it is appropriate to have a sprinkling of sheds over a cottage lot property and, if so, what number, size and location, appearance would be permitted on the parcel, after consultation with adjacent property owners and consideration of other factors. (Atlantis Health Spa Ltd. v. City of Charlottetown, Order LA12-02).  The Planning Act addresses not only municipalities with Official Plans and land use bylaws but also areas of the Province which do not have Official Plans and land use bylaws.  Sound planning must be a common feature of development throughout Prince Edward Island and property owners located in areas of the Province for which there is no municipal government should not be subject to inferior land use planning rights and responsibilities.  Sound planning principles are a guard against arbitrary decision making especially where a regulatory checklist does not address a concern.  Sound planning principles require regulatory compliance but go beyond merely insuring such compliance and require discretion to be exercised in a principled and informed manner.  Sound planning principles require the decision maker to take into consideration the broader implications of their decisions.  In order to ensure that sound planning principles have been followed in anomalous applications a professional land use planner must be consulted.  The Minister's staff admitted that, in hindsight, the decision to grant the permits for these applications allowing the placement of three sheds on one lot was not based on sound planning principles.  The Minister's staff further acknowledged that the applications, if they were now received, would not have been processed without land use planners being consulted.

[65]    The Commission notes that when the Appellant contacted the Minister's department to get information on the building permits that were issued she was advised that she would have to launch an appeal with this Commission in order to get that information.  The Commission recommends that the Minister change this policy when dealing with inquiries with respect to applications or permits under the Planning Act.  No one should be forced to launch a quasi-judicial appeal simply to obtain information with respect to a permit issued by the Minister.  As the Commission has seen in the past this results in numerous appeals being filed, only to be withdrawn after there is full disclosure to the Appellant with respect to the permit.  The Commission recommends that the Minister develop an internal procedure to allow for the efficient dissemination of information on permits issued so that interested parties can then make a determination as to whether or not an appeal should be filed.

[66]    The Developers' applications to designate a small storage shed a cottage and receive approval for "bunkies" were not contemplated by the Regulations and thus required consultation with a professional land use planner.  As the Minister's staff did not consult with a professional planner, the Commission finds that the Minister failed to consider sound planning principles.  Accordingly, the second part of the two-part test has not been met and the Commission hereby quashes Permit No. M-2015-0088.

4.  Disposition

[67]    An Order allowing the appeal and quashing Permit No. M-2015-0087 and Permit No. M-2015-0088 follows.

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