Order LA93-01 - LA92017 - Planning Appeal - Roger & Marie Gillis v. Dept. of Community & Cultural Affairs (Feb 5, 1993)

Docket: LA92017

Order: LA93-1

IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;

and

IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), pursuant to Section 28 of the Planning Act, whereby Roger Gillis and Marie A. Gillis (the Appellants) have appealed a decision of the Department of Community and Cultural Affairs (the Department) denying them permission to develop Parcel #475897 for single-family dwelling use in DeBlois, Prince Edward Island.

BEFORE THE COMMISSION

on Friday, the 5th day of February, 1993.

Linda Webber, Chairman
John L. Blakney, Vice-Chairman
James Nicholson, Commissioner

Order

Appearances & Witnesses

1. For the Appellants

Roger Gillis the Appellant,

John Perry in support of the Appellant

2. For the Department of Community and Cultural Affairs

Gerald MacMillan Property Development Officer

Delbert Reeves Utility Works Supervisor

Department of the Environment

Reasons for Order

I. BACKGROUND

In accordance with the Planning Act, the Minister of Community and Cultural Affairs has the authority to approve or deny the issuance of building permits for single-family dwelling use.

On September 10, 1992,¹ Marie Gillis completed a form letter provided by the Department and submitted it to the Department to request an evaluation of the property (Provincial Property Number 475897) for the construction of a single-family dwelling. The property is located in DeBlois, Prince Edward Island.

An evaluation of the property was carried out by the Department (Exhibit 2) and the P.E.I. Department of the Environment (Exhibit 5). The results of this evaluation concluded that the soils on the lot are not suitable for the satisfactory operation of a septic system. The land in general was found to be poorly drained with a high seasonal water table which will cause severe limitations for sewage disposal.

On November 10, 1992, the Department advised Marie Gillis that they could not grant approval for the development of the lot. The Department stated that the bases for this decision were Sections 15 and 25 of the Planning Act Regulations.

On November 26, 1992, Marie A. Gillis and Roger Gillis appealed the decision of the Department to The Island Regulatory and Appeals Commission (Exhibit 11).

The Commission heard the appeal on February 5, 1993, in Charlottetown.

II. EVIDENCE AND ARGUMENTS

A. Appellants

Arguments for the Appellants can be summarized as follows:

Prior to the acquisition of the property by the Appellant, the property was owned by the Appellant's ancestors. At one time the land formed part of an active farm and was used to grow grain and potatoes. During this period, a residence was located at the back end of the property. The land has not been used for approximately 40 to 45 years and is currently overgrown with alders.

In response to the Department's conclusion that the property is not suitable for on-site sewage disposal, the Appellant presented Mr. John Perry, a local contractor, who stated that by adding fill to the site, an adequate system could be constructed. The Appellant contends that the deficiencies associated with the lot may be corrected by the process, as outlined by Mr. Perry.

The Appellant also argued that if the site was cleared and the soil tilled, the land would be allowed to drain and dry, which would make it more suitable for development.

The Appellant argued that the soil maps indicate that the parcel contains two types of soil - West Point and Margate. Although the Margate soil is not a good quality soil for a septic system, "it is a bit better". The proposed residence will be located closer to the highway, where the land is higher. This area of the property will be more conducive to the proposed development.

In conclusion, the Appellant argued that he was not satisfied with the Department's decision to deny him the opportunity to develop the lot without some opportunity to put forward a plan to address the limitations of on-site sewage disposal.

B. The Department of Community and Cultural Affairs

Arguments for the Department can be summarized as follows:

On September 10, 1992, Gerald MacMillan completed a pre-development inspection of the property by digging two shovel holes to a depth of approximately 14" to 18" (Exhibit 2). The remarks and recommendations on the inspection sheet indicate the property is grown up in alders and the soils are predominantly "tight".

On September 11, 1992, the Department requested comments from The Department of the Environment. Mr. Delbert Reeves responded on October 22, 1992 by stating that through a review of the P.E.I. Soil Survey he found the soils in this area to be of the West Point map unit. From his analysis he concluded that:

"These soils are imperfectly drained; they have moderate to slow surface drainage and slow internal permeability. The degree of limitation for septic filter fields is rated as severe due to a seasonally high water table and poor permeability."

Based on these conditions Mr. Reeves stated that he would "recommend that the site is not suitable for development using on-site sewage disposal".

The Department argued that they have denied several other requests for development in the immediate area because of similar site conditions. In addition, it has been the experience of the Department that the solution offered by the Appellant' s witness, Mr. John Perry, is not an adequate solution for soil conditions in the area - the addition of fill to the site will not alleviate the soil and lot deficiencies.

The application was denied based on Section 15. (b), (d) and (e) of the Planning Act Regulations.

15. No building permit shall be issued where, in the opinion of the Minister, the proposed building or structure, or its alteration, repair, location or change of use

. . .

(b) would be detrimental to the convenience, health or safety of occupants or residents in the vicinity or the general public;

. . .

(d) would result in undue damage to the natural environment;

(e) would have a detrimental impact on surrounding land uses.

Although Section 25 of the Planning Act Regulations was cited as a reason for denial, this was in error.

The application was also denied based on the fact that the installation of an absorption field on this site is prohibited under Section 7.(1)(a) and (b) of the Environmental Protection Act - Sewage Disposal Regulations:

7.(1) An absorption field shall not be located

(a) in an area where the ground water, watercourse or bedrock is less than 4 feet below the ground surface at any time;

(b) in any area which, in the opinion of the authority having jurisdiction, may be subject to flooding either by a natural body of water or by ground surface water runoff;

The Department concluded that based on the evaluation of the site and the assessment of the soil survey information, the site could not support an on-site sewage disposal system and therefore they had no alternative but to deny approval for development of the lot.

III. DECISION

Having considered the evidence presented during the hearing, the Commission decided to deny the appeal to allow the development of the parcel for a single-family dwelling. However, the Commission does believe that the Appellant should have the opportunity to design an on-site sewage disposal system that will satisfy the Minister that the issuance of a permit will not be detrimental to the convenience, health or safety of occupants or residents in the vicinity or the general public; would not result in undue damage to the natural environment or have a detrimental impact on surrounding land uses. The reasons for the Commission's decision are as follows:

(1) The Commission accepts that Section 25 is not relevant to the appeal. Gerald MacMillan could not understand why it was referenced in the decision and there is no evidence before the Commission supporting the use of Section 25 as authority for denial of the application. In the opinion of the Commission, the fact that Section 25 does not apply to this case is not reason enough to allow the appeal.

(2) The evidence on soil permeability or water absorption rates and the high seasonal water table is enough to convince the Commission that a conventional system, or the mere addition of 3 feet of fill plus additional gravel, as suggested by the Appellant's witness, will not satisfy the requirements of Section 15. From the evidence, systems of similar design have been used on other lots of similar soil characteristics located in the immediate vicinity and serious system malfunctions have been experienced to the point where an original system had to be replaced within a very short time period.

(3) When a matter is appealed pursuant to Section 28 of the Planning Act, the Commission can consider only the evidence that is presented to it during the hearing. Gerald MacMillan's memorandum to Gerry MacDonald (Exhibit #7) gave two options - deny the application or require him to hire a qualified consultant firm to design a sewage disposal system. In his letter conveying the Department's decision, Gerry MacDonald made no reference to the option for hiring a qualified consultant and there is no evidence before the Commission to explain why the option was not given to the Appellant. When questioned by the Commission, Mr. MacMillan could not explain why the option was omitted, especially when he thought it was common practice to include the option in similar decisions. Since Gerry MacDonald did not give evidence as to why the option was omitted, the Commission accepts the evidence of Gerald MacMillan that the option to hire a consultant should have been included in the decision.

(4) It is clear to the Commission that based on a somewhat limited on-site investigation of the soil composition by the Property Development Officer, and a review of his findings and soil survey maps by Delbert Reeves, that they both quickly concluded that it would be very difficult to design a reliable system. In fact, Mr. Reeves indicated that he could not think of any consultant who would recommend a system for a site with these physical characteristics. However, the Commission does note that he did not go as far as to say that it could not be done.

(5) The characteristics of this particular site - limited soil permeability, limited slope and high seasonal water table - indicate that it would be very difficult to design an on-site system that would work effectively and the costs for such a system may be prohibitive. It cannot be denied that one of the fundamental factors that determines liveability in a house, no matter the price you pay for the structure and its contents, is the ability to properly dispose of domestic sewage. If the soil cannot support an on-site sewage system the house can easily be considered a major liability by its owner rather than a major asset. A constantly malfunctioning sewage disposal system can impact significantly on the very ability to live and enjoy one's home. Consequently, the Commission believes that when lots are deemed to be unsuitable for an on-site sewage disposal system one should consider very carefully the ramifications of building a home on such a site - not to mention the possible impacts on neighboring lots.

However, even though the Planning Act Regulations make provision in Section 15 for the Minister to deny applications in situations where soil composition is unsuitable for an on-site sewage disposal system, the Commission does not interpret Section 15 to strictly prohibit development of the property or to sterilize the use of the land. The Commission therefore believes the Appellant should have the opportunity to hire a qualified engineer to design a system that will meet the requirements of the Environmental Protection Act and satisfy the Minister that the issuance of a permit would not violate Section 15(b), (d) and (e) of the Planning Act Regulations.

(6) The Commission must caution the Appellant that it agrees with the conclusions reached by the officials of the Departments of Community and Cultural Affairs and Environment that the soil absorption rates and high water table make the design of an appropriate system highly unlikely. If the Appellant decides to hire a consultant to design a new system it is still possible that the problems will not be overcome, and the money so spent might be considered "wasted". The Appellant should weigh all these considerations before proceeding further.

IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;

and

IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), pursuant to Section 28 of the Planning Act, whereby Roger Gillis and Marie A. Gillis (the Appellants) have appealed a decision of the Department of Community and Cultural Affairs (the Department) denying them permission to develop Parcel #475897 for single-family dwelling use in DeBlois, P.E.I.

Order

WHEREAS Marie A. Gillis and Roger Gillis (the Appellants) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated November 26, 1992, against a decision of the Department of Community and Cultural Affairs;

AND WHEREAS the Commission heard the appeal at a public hearing conducted on February 5, 1993, after due public notice;

AND WHEREAS the Commission has made a decision in accordance with the stated reasons;

NOW THEREFORE, pursuant to the Planning Act;

IT IS ORDERED THAT the appeal is hereby denied; and

IT IS FURTHER ORDERED THAT the Minister of Community and Cultural Affairs give the opportunity to the Appellants to present an on-site sewage disposal system designed by a qualified consultant specifically for parcel #475897 that may allow the Minister to approve the parcel for single-family dwelling use.

DATED at Charlottetown, Prince Edward Island, this 3rd day of March, 1993.

BY THE COMMISSION:

Linda Webber, Chairman

John L. Blakney, Vice-Chairman

James Nicholson, Commissioner

^{1 Date provided by Mr. Roger Gillis during his
testimony.}