Order LA93-11 - LA93005 - Planning Appeal - David A. Baxendale v. Dept. of Provincial Affairs (Sep 27, 1993)

Docket: LA93005

Order: LA93-11

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), under Section 28 of the Planning Act, by David A. Baxendale (the Appellant) of Princeton, New Jersey, against a decision whereby the Department of Provincial Affairs (the Department) granted approval in principle to Claude Paynter of Sherwood, Prince Edward Island to subdivide parcel (Provincial Property No. 518563) in Point Prim, P.E.I. into two lots for summer cottage use.

DATED the 27th day of September, 1993.

John L. Blakney, Vice-Chairman
James Nicholson, Commissioner
Myrtle Jenkins-Smith, Commissioner

Order

Appearances

BY WRITTEN SUBMISSION:

1. For the Appellant

David A. Baxendale

The Appellant

2. For the Department

John Pickard

Supervisor, Subdivision Development Section

3. For the Property Owner

Claude Paynter Property owner

Decision

I. BACKGROUND

In accordance with the Planning Act and the Planning Act Regulations, the Minister of Provincial Affairs has the authority to approve proposals for the subdivision of land. Pursuant to Section 24(1) of the regulations:

Section 24(1)

No person shall subdivide one or more lots in any area until he has submitted a certified plan of survey thereof to the Minister and received a certificate of approval therefor from the Minister.

On February 25, 1993, Claude Paynter applied for approval to subdivide property (Provincial Property Number 518563) into two lots for summer cottage use. The property is located in Point Prim, P.E.I.

On April 29, 1993, the Department of Community and Cultural Affairs (now the Department of Provincial Affairs) notified Mr. Paynter that the application was approved in principle. Final approval was subject to the following conditions:

1. The lot having dimensions as shown on your preliminary plan.

2. Maintenance of a buffer zone on the shorefront lot, having a width of sixty (60') feet measured from the mean high water mark; this buffer area will remain part of the shorefront lot, but no construction will be permitted within the area, and a note to that effect will be attached to our final approval.

3. The lots being surveyed and pinned in accordance with our normal requirements.

In addition, the Department stated in its decision that as the property is part of a group of lots originally approved in 1975, and the overall development was part of a subdivision agreement between the developer (Frontenac Associates, Incorporated) and the Province, each lot owner would be notified of the Department's decision.

On April 29, 1993, all lot owners were notified by the Department of their decision to approve in principle the application by Claude Paynter to subdivide property number 518563. The Department stated: "the resulting lots will each have an area of approximately one (1) acre, which is well in excess of the minimum required by the Planning Act Regulations and the Coastal Area Regulations; in addition nothing in the original subdivision agreement between the Province and Frontenac Associates Ltd. appears to prevent the proposed subdivision."

On May 19, 1993, Mr. David A. Baxendale appealed the decision of the Department to the Commission.

The Commission heard the appeal by way a paper hearing on August 18, 1993.

II. EVIDENCE AND ARGUMENTS

A. Appellant

Arguments for the Appellant can be summarized as follows:

The Appellant argued that by allowing Claude Paynter to subdivide his property into two lots, the Department of Provincial Affairs have in effect "struck down an existing subdivision plan by allowing a doubling of the density". "The original subdivision plan should be upheld since it is the only protection afforded the landowners from changes in their subdivision".

Mr. Baxendale argued the subdivision plan should serve the purpose of a zoning plan and in order for the changes to be permitted, all landowners affected by the subdivision should agree to the proposal.

In conclusion, the Appellant argued that if a doubling of the density of the lots is allowed from eight to sixteen he will be greatly impacted and this will dramatically reduce his enjoyment from the land.

B. Department

Arguments for the Department can be summarized as follows:

The Department submits that the proposal by Mr. Paynter to subdivide his property is not uncommon. The Department found that the proposal met the necessary requirements of the Planning Act Regulations and the Coastal Area Regulations, and would not be damaging to the environment, and as a result approved the proposal in principle.

The lots created by the subdivision will have areas of about one acre, which are well in excess of the minimum area of fifteen thousand (15,000) square feet called for when the application was under consideration, and also exceeds the new minimum of twenty-five thousand (25,000) square feet that came into effect when the regulations were amended on June 12, 1993.

The Department argued that they notified the landowners of the proposed subdivision as a matter of courtesy and were not obliged to do so under the Subdivision Agreement or the Regulations.

C. Claude Paynter

Arguments for Claude Paynter can be summarized as follows:

Mr. Paynter argued that his application for subdivision approval was properly made under the Planning Act and the Planning Act Regulations.

With respect to the Frontenac Associates Inc. subdivision and its integrity, Mr. Paynter argued the current lots are not equal in size and range from 1.3 acres to 2.7 acres. The subdivision of lot 7, property number 518563, does not affect the integrity of the subdivision as the proposed lots would remain in the one acre range, which by P.E.I. standards, is still quite large for cottage or single family dwelling use. The right-of-way servicing these lots in the subdivision is sixty-six (66) feet wide and, therefore, will not be impacted upon by approval of the subdivision.

Mr. Paynter indicated that he cannot see how the proposed subdivision will "damage the well being" of Mr. Baxendale or any other lot owner in the area. The proposal does not change the use of the lots as they will continue to be bound by the restrictive covenants which currently affect the whole subdivision.

Mr. Paynter stated "the proposal is completely within the law now affecting the subdivision of land in P.E.I. To develop land in P.E.I. under the laws of this Province cannot be said to be irresponsible."

In conclusion, Mr. Paynter argued the premise of the Appellant's argument is incorrect. "To take his argument to the extreme would mean that no further subdivision of land would ever take place. Islanders are entitled to the use and enjoyment of their land - provided all laws are followed, neighbors can deal with their land as they see fit."

The decision of the Department of Provincial Affairs was correct and in accordance with the current land laws of P.E.I.

III. DECISION

Having considered the written submissions, the Commission decided to deny the appeal. The reasons for denying the appeal are:

After considering the evidence the Commission finds that the proposed subdivision meets the requirements of the Planning Act.

In making its decision, the Commission also focused on the Agreement, dated August 25, 1975, between Frontenac Associates Incorporated and the Province of Prince Edward Island and whether or not its provisions limited the land owner's right to subdivide.

After careful review, the Commission finds the Agreement provides for conditions for the developer to construct and install certain services, set up building restrictions and provide certain rights to purchasers of the lots in the subdivision. The Agreement makes provision for the approval of the "development scheme" and the registration of the subdivision plan.

Under Part III, Zoning and Building Restrictions Running With the Land Under the Development Scheme, Section 2 states:

The covenants and agreements contained in this agreement and the covenants and uses described in the schedules attached hereto run with the land and are binding on all subsequent purchasers of land in the development and can only be changed by following the provisions of The Planning Act.

In the case before the Commission there is no specific restriction against further subdivision of a lot, even though the Agreement contemplates the approval of the "development scheme" and the registration of the subdivision plan. The covenants, agreements and uses set out in the Agreement and the schedules to the Agreement (including the subdivision plan), run with the land and are binding on all subsequent purchasers in the development, but the Agreement allows the covenants, agreements and uses to be changed by following the provisions of the Planning Act.

The subdivision agreement requires that the lots be used for summer cottage use. The Commission finds that the proposed subdivision by Mr. Paynter will not change the use but will alter the density. The Agreement does not prevent further subdivision of the original lot and therefore allows an increase in density.

Despite the fact that there are two lot owners in opposition to the subdivision, it is not reason enough to allow the appeal. The Regulations and the Agreement do not require unanimous consent of the land owners.

In conclusion, the Commission can find no restrictive covenant contained in the Agreement which would prohibit further subdivision of the properties. The Commission finds that pursuant to the Planning Act Regulations, the land owner can subdivide his lot and there is no substantive evidence to support denial of the severance.

Therefore the appeal is denied.

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), under Section 28 of the Planning Act, by David A. Baxendale (the Appellant) of Princeton, New Jersey, against a decision whereby the Department of Provincial Affairs (the Department) granted approval in principle to Claude Paynter of Sherwood, Prince Edward Island to subdivide parcel (Provincial Property No. 518563) in Point Prim, P.E.I. into two lots for summer cottage use.

Order

WHEREAS David A. Baxendale (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated May 19, 1993, against a decision of the Department of Provincial Affairs;

AND WHEREAS the Commission heard the appeal by way of a paper hearing conducted in Charlottetown, P.E.I. on August 18, 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.

DATED at Charlottetown, Prince Edward Island this 27th day of September, 1993.

BY THE COMMISSION:

John Blakney, Vice-Chair

James Nicholson, Commissioner

Myrtle Jenkins-Smith, Commissioner