Docket: LA93012

Order: LA93-13

 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 Lorne R. Perry (the Appellant) of Dartmouth, Nova Scotia, against a decision of the Department of Provincial Affairs (The Department) to deny approval to subdivide Parcel (Provincial Property Number 669788) at Brackley Beach into two lots.

DATED the 20th day of December, 1993.

Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner 

Order

Appearances

1. For the Appellant

Lorne R. Perry the Appellant

2. For the Department

Gerry MacDonald Supervisor, Building Development Section 

Reasons for 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 July 26, 1993, Lorne R. Perry applied for approval to subdivide property (Provincial Property Number 669788) into two lots. The property is located in the Community of Brackley Beach.(Exhibit 8)

In a letter to the Honorable Walter McEwen, dated July 26, 1993, Mr. Perry stated that he had not been aware in advance of the legislative changes which would now prevent him from subdividing his property.(Exhibit 7) He further stated:

"My intent was clear and always to subdivide this land. I stated so to Mr. Hughes before I purchased it. I had him sell me a square lot so each son could share equally. Every action in relation to this land taken in 1992 and to this point in 1983(sic) were actions related to the process of subdividing."

On August 18, 1993, the Minister advised Mr. Perry by letter that the Department was unable to approve the proposed subdivision because the lots proposed would be in contravention of Section 27 of the Planning Act Regulations (during the hearing, the Department clarified that Section 37 should have been cited and not Section 27).(Exhibit 4)

On August 20, 1993, Mr. Perry appealed the decision of the Minister to The Island Regulatory and Appeals Commission. (Exhibit 2)

The Commission heard the appeal on Monday, September 20, 1993, in Charlottetown, P.E.I.

On September 20, 1993, at the request of the Commission, the Department submitted information relative to an application made in 1982 by Mr. Perry to subdivide property.

On September 28, 1993 the Commission received a submission by Mr. Perry in response to the information as submitted by the Department on September 20, 1993.

II. EVIDENCE AND ARGUMENTS

A. Appellant

The Appellant presented several arguments in his letter of appeal, in his submission to the Commission during the hearing, and in his letter to the Commission dated September 28, 1993. The primary arguments can be summarized as follows:

· The Appellant argued that he had "endeavored" to have his land subdivided prior to the legislative changes. In his letter of appeal, the Appellant stated that "he had taken all reasonable steps to have permission ... to have the land subdivided before the deadline date."(Exhibit 3) Mr. Perry stated his proposed subdivision met the requirements of the Planning Act Regulations prior to recent legislative changes. As a result, his application should be approved based on the regulations which existed prior to the changes. It was the opinion of Mr. Perry that because he was not made aware of the legislative changes he should not be penalized for filing notice after the changes were made. Mr. Perry stated that he had no way of knowing that changes would be made to the regulations - if he had known, he would have made the application prior to the changes. (Exhibit 7)

· The Appellant argued the Minister should be required to notify the public when changes to legislation are being proposed. Mr. Perry submitted that the Department's decision will result in a "serious financial loss" to his family. The land if subdivided could have a value in excess of $30,000 or approximately $15,000 for each lot. However, after the legislative changes the land is now worth no more than $15,000. or the approximate value of one lot.(Exhibit 7)

· The Appellant stated that this should be considered a minor variance. In a letter to the Minister of Provincial Affairs, dated July 26, 1993, Mr. Perry stated that the "new legislated Frontage is 150 sq. ft.(sic) the subject lots would be 100 sq. ft.(sic). These are minor variances." Mr. Perry argued that his request should be granted as he believes his subdivision would not set a "dangerous" precedent.

· The Appellant further argued that in August 6, 1982 the Department granted approval in principle to a preliminary application to subdivide. As stated in the letter to Mr. Perry from John Hughes, final approval was subject to the following conditions:

1. Access to the lot being by the existing right-of-way only. The lot having a minimum area of 15,000 square feet.

2. The lot being surveyed and pinned in accordance with the Department of Community Affairs' normal requirements. ...

3. Approval being obtained from this Department for the location of the structure, well and sewage disposal system prior to commencing construction.

Mr. Perry believed that this preliminary application was to subdivide the lots now in question, and therefore, based on the previous decision, the Department could not now refuse the present application to subdivide.1

· Mr. Perry argued that there were "extenuating circumstances beyond his control", specifically, he stated he had suffered a stroke during the summer which prevented him from making application before the regulations were changed. As a result, he argued, the Commission should allow the appeal on compassionate grounds.

B. The Department

Arguments for the Department can be summarized as follows:

The Department denied the application based on the fact that the proposed lot size and frontage failed to meet the minimum requirements as set out in Section 37 of the Planning Act Regulations. Mr. MacDonald stated that the Minister had personally reviewed the case and it was his opinion that a minor variance could not be granted.

The Department argued that as the regulations were amended on June 12, 1993, and the application was not made by Mr. Perry until July 26, 1993, the Department had no alternative but to apply the new regulations. This decision was consistent with Departmental policy.

With respect to the letter to Mr. Perry dated August 6, 1982, which gave approval in principle for the subdivision of land for summer cottage use, Mr. MacDonald stated that approval was given for a lot (parcel No. 669788) to be subdivided from the parent parcel (parcel No. 132365) - in his opinion this approval had nothing to do with the further subdivision of the lot now owned by Mr. Perry and the subject of this appeal.

With respect to changes to the regulations, Mr. MacDonald stated that the Department is not required nor is there a policy to notify the public of such changes or proposals for changes.

III. DECISION

Having considered the evidence presented during the hearing, the Commission decided to deny the appeal. The reasons for this decision are as follows:

Powers of the Commission

The Commission is guided by Section 28 of the Planning Act, where it is empowered to hear and decide appeals.

Section 28

(1) Subject to subsection(1.1) and (2), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act, may, within twenty-one days, appeal to the Commission.

(1.1) Where the Lieutenant Governor in Council has by order declared that

(a) a development for which approval is required under the Environmental Protection Act has met all the requirements of that Act and written approval has been given; and

(b) the right of appeal to the Commission in respect of that development should be curtailed, subsection (1) has no application and there is no right of appeal to the Commission in respect of a decision on that development.

(1.2) Where a declaration has been made under subsection (1.1), the Lieutenant Governor in Council shall submit to the next session of the Legislative Assembly a statement of the reasons for making the declaration.

(2) Subject to the adherence to the rules of natural justice, the Commission shall determine its own procedure.

(3) The Commission shall hear and decide appeals and shall issue an order giving effect to its disposition.

(4) The Commission shall give reasons for its decisions.

(5) Repealed by 1991,c.18,s.22.

(6) The council or the Minister, as the case may be, shall enforce an order by the Commission.

Since the Act does not provide guidance on how these powers are to be interpreted, the Commission has reviewed a number of decisions of the P.E.I. Supreme Court which have dealt, to some extent, with the Commission's appellate jurisdiction under predecessor Planning Acts.

In the case Dennis Construction v. P.E.I. Land Use Commission et al., the Commission overturned a building permit which had been issued by the Minister.2 Dennis Construction appealed the decision of the Commission to the P.E.I. Supreme Court on the grounds that the Commission exceeded its jurisdiction by holding a new hearing and by asking itself the wrong questions, i.e. the Commission ought to have decided whether the Minister properly issued the permit on the evidence before him. Mr. Justice Large held that the Commission did not exceed its jurisdiction by re-hearing the case.

In another case of similar nature, Chief Justice Nicholson also approved a re-hearing on appeal to the Commission (Land Use Commission as it then was).3 Chief Justice Nicholson found that "The Commission has the same unfettered discretion as the Minister in coming to his decision."4

In general the Courts have adopted the position that the appellate jurisdiction of administrative tribunals confers a right of substitution, except where the empowering statute provides otherwise. In the opinion of the Commission, both of these rulings appear to confirm that under the appeal provisions of the Planning Act, the Commission has jurisdiction to re-hear the case and to substitute its decision for the decision of the Minister. In other words, the Commission as an appellate body has the same decision making power as the tribunal of first instance, in this case the Minister, within the regulations that existed at the time of an application.

Compassionate Grounds/Timing of Application

The Appellant proposed that the Commission has the powers to exercise its own discretion in place of that of the Minister and in so doing grant approval, on compassionate grounds, to subdivide parcel No. 669788 into two lots.

Our review indicates no basis in law for this suggestion. We are bound by the same rules and regulations that bind the Minister. In addition, the facts before us do not show any real connection between the Appellant's health problems and the decision he was appealing. We have no evidence of any ongoing actions of his being delayed as a result of these health problems. They appear only to have been coincidental with a change in the law.

The Appellant argued that because he "was making every possible effort to subdivide", before and at the time changes to the regulations were made, he should be given the same standing as if he had made the application.(Exhibit 11)

In response to the Appellant's argument, the Department submitted that as the Planning Act Regulations were amended on June 12, 1993, and the application was not submitted by Mr. Perry until July 26, 1993, the Department had no alternative but to deny the application based on the requirements of the revised regulations. Regardless of what the Appellant's intentions may have been, neither the Commission nor the Department had before it any evidence of action in support of that intention prior to the change in regulation. At best, the Appellant "always intended" to subdivide the land but had not acted upon this general intent.

In his letter to the Minister, dated July 26, 1993, Mr. Perry stated:

"Until the recent legislation that took place during the process of my efforts to subdivide, the land was well within the legal requirements. I was informed by several people with your department including Mr. Pickard and Mr. Freisen(sic) that if one was in process of subdividing under the previous requirements, they would be accepted. The new requirements include an increase to 25,000 sq. ft. for a lot. The proposed lots would have an area of 21,000 sq. ft."(Exhibit 7)

From the Appellant's submission, the Commission believes that the question that must be asked is whether the Appellant, by his actions, had an accrued or vested right to subdivide the property?

In order for the Appellant to have standing under the previous Regulations, the Commission believes that a completed application would have had to be filed prior to the revised Regulations. At the time the Regulations were changed on June 12, 1993, nothing had been filed with the Department - not even an incomplete application. As a result, there is no basis upon which we can find any vested right has accrued to the Appellant.

Public Consultation/Notice

The Appellant argued that in revising the legislative requirements, the Minister should have consulted or informed the public that changes to the Regulations were pending. Mr. Perry stated in his letter of appeal that neither he nor his real estate agent were notified of the proposed changes to the legislation and that the notice was not published.(Exhibit 3)

As stated by Mr. Gerry MacDonald, the Department's representative, there are no provisions in the Planning Act or the Planning Act Regulations which require the Minister to notify the public of pending legislative changes.

The Commission views the process of involving and informing the public as an important ingredient when making rules that affect the proprietary rights of individuals to the use of their land. As stated in Rogers, Canadian Law of Planning and Zoning, a noted authority on land use planning, there are four phases in the planning process, the third of which is defined as "the preparation and adoption of plans and programs, with a full measure of citizen participation."5

However there is no requirement for the Minister to notify the public. Therefore the failure of the Minister to notify the Appellant or serve public notice of proposed revisions to the Regulations is not enough to allow the appeal.

Minor Variance

With respect to allowing the appeal on the basis of minor variance, the Appellant stated in his letter to the Minister, dated July 26, 1993:

the new requirements include an increase to 25,000 sq. ft. for a lot. The proposed lots would have an area of 21,780 sq. ft. The new legislated frontage is 150 sq. ft. the subject lots would be 100 sq. ft. These are minor variances.

In its review of the Planning Act with respect to the application of "minor variances", the Commission finds that:

Section 9.(1)

The Minister may, for special cause, authorize such minor variance from the provisions of these regulations as in his opinion is desirable and not inconsistent with the general intent and purpose of these regulations.

Section 9.(2)

Applicants seeking a variance from the provisions of these regulations shall clearly document the grounds for special cause for the consideration of the Minister

The Commission notes that the term "minor variance" is nowhere defined in the Regulations, however, previous decisions of the former Land Use Commission have determined that the Commission is empowered to use discretion in its interpretation of what it considers to be a minor variance.6

The Commission has looked for guidance from other jurisdictions in determining what may be considered a "minor variance". As reported in Rogers, Canadian Law of Planning and Zoning variances are granted to overcome the "rigidity" of development standards and to introduce a degree of "flexibility" in the application of such standards.7

The Commission finds that in other jurisdictions the application of a minor variance may be allowed if the general intent and purpose of the plan policy or bylaw is maintained.

How far the courts have taken this principle is shown in the case of Re Perry et al. and Taggart et al. before the Ontario High Court, where it was found that: "The term 'minor variance' is a relative expression, and, to permit it a good deal of flexibility, it must be interpreted with regard to the circumstances involved."8 In that case it was determined that the Committee of Adjustments did not exceed its jurisdiction by allowing a 41-foot variance instead of the required 60-foot frontage, as no adverse effect on the neighborhood was created. Notwithstanding the above approach to the application of a minor variance clause, in this Province it has been commonly understood that variances on standards such as lot size and frontage should not exceed 10%. In this case, the proposed lot size and frontage cannot meet this variance standard.

In general, the Commission believes that the overall requirement which must be satisfied with respect to granting a minor variance is that the general intent and purpose of the regulation must be adhered to. Although somewhat subjective, the Commission finds that discretion is to be used in the application of a minor variance, and should be determined based on the merits of each individual application.

The Commission can find no substantiative evidence presented by the Appellant to suggest that his application and the variance requested is consistent with the general intent or purpose of the regulations.

Permission to Subdivide

On the matter of whether permission to subdivide the property in question was previously given to the Appellant, the Commission examined the submission by the Department, dated September 20, 1993. The Commission noted that the Department informed Mr. Perry, by a letter dated August 6, 1982 that preliminary approval was given to subdivide. The letter states that:

Your preliminary application to subdivide one lot has been granted approval in principle for summer cottage use only; final approval will be subject to the following conditions: [emphasis added]

1. Access to the lot being by the existing right-of-way only. The lot having a minimum area of 15,000 square feet.

2. The lot being surveyed and pinned in accordance with the Department of Community Affairs' normal requirements. ...

3. Approval being obtained from this Department for the location of the structure, well and sewage disposal system prior to commencing construction.

Mr. Perry was afforded the opportunity to review the Department's submission. In response, Mr. Perry stated that, "I did receive a letter in 1982 with no time restriction, stating permission would be granted to subdivide a lot of 15,000 sq. feet."

On review of the information filed with the Commission by the Department on September 20, 1993, and upon review of the submission by the Appellant dated September 28, 1993, the Commission believes that this approval was given in relation to an application dated August 2, 1982. The application was made to subdivide one lot from a larger parcel (Provincial Property No. 132365) for summer cottage use.

The Commission concludes that the approval was given to subdivide a lot from the original parent parcel 132365 which resulted in the creation of parcel No. 669788, the lot now owned by the Appellant. The Commission finds that the letter of August 6, 1982 granting preliminary approval, should in no way be interpreted as giving permission to the Appellant to further subdivide Provincial Property Number 669788 into two lots, each approximately 21,780 sq. ft. and each 100 ft. wide.

For the reasons outlined above, the appeal is dismissed. 

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 Lorne R. Perry (the Appellant) of Dartmouth, Nova Scotia, against a decision of the Department of Provincial Affairs (The Department) to deny approval to subdivide Parcel (Provincial Property Number 669788) at Brackley Beach into two lots.

Order

WHEREAS Lorne R. Perry (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated August 20, 1993, against a decision of the Department of Provincial Affairs;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown, P.E.I., on Monday, September 20, 1993, after due public notice;

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

NOW THEREFORE, pursuant to the Planning Act;

IT IS ORDERED THAT the appeal is hereby denied.

DATED at Charlottetown, Prince Edward Island this 20th day of December, 1993.

BY THE COMMISSION:

Linda Webber, Chairman

John L. Blakney, Vice-Chairman

Myrtle Jenkins-Smith, Commissioner

1 Letter to Mr. Lorne Perry from the Department of Community Affairs, dated August 6, 1982.

2 Re Dennis Construction Limited v. P.E.I. Land Use Commission (defendant) and Department of Community and Cultural Affairs and Brackley Community Improvement Committee (interested parties) (No. GDC-4882) P.E.I. Supreme Court March 26, 1984.

3 Re Butler (1979), 20 Nfld. & P.E.I.R. 469; 53 A.P.R. 469, appld.

4 Ibid.

5 Rogers, Canadian Law of Planning and Zoning, 1993 Release No. 3, p.1.3.

6 Vera O. Simpson v. Department of Community and Cultural Affairs, October 19, 1989. The Commission allowed a variance of 12.1%. Ron MacKinnon v. Department of Community and Cultural Affairs, August 26, 1991. The Commission denied a variance of approximately 14%.

7 Rogers, Canadian Law of Planning and Zoning, 1993 Release No. 3, p.210.6.

8 Re Perry et al. and Taggart et al., Ontario High Court, Donohue, J., August 11, 1971.