DOCKET LA92012
ORDER LA93-6
IN THE MATTER of the
Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal,
under Section 28 of the Planning Act, by Elwin Jay Holdings Inc., (the Appellant)
against a decision whereby the Community Council of East Royalty (the Council) denied
Elwin Jay, the President of the Company, a building permit to allow the continued removal
of 4" - 6" of topsoil from a vacant 23 acre parcel of land (Provincial Property
Number 736926) located on the MacWilliams Rd., Community of East Royalty, Queens County.
BEFORE THE COMMISSION
on
Friday, the 11th day of June, 1993.
Linda Webber, Chairman
John L. Blakney, Vice Chairman
Myrtle Jenkins-Smith, Commissioner
Order
Appearances & Witnesses
1. For the Appellants
Elwin Jay and Kim Jay for Elwin Jay Holdings Inc., the
Appellant
2. For the Community of East Royalty
Cathy Parkman Legal Counsel
Kevin McCarville Administrator
Decision
I. BACKGROUND
In accordance with Section 13.1 of the Community of East
Royalty's Zoning and Subdivision Control Bylaws, the Community Council has the authority
to approve or deny the issuance of a building permit.
On September 23, 1990, Mr. Elwin Jay completed an Application
for Development Permit for Temporary Excavation Pit to the Department of the
Environment. The application is for the excavation of approximately 6,000 cubic yards of
topsoil to be removed from a pit to be located on Provincial Property Number 736926 in
East Royalty, Prince Edward Island (Exhibit 1). The land is within a Residential Reserve
Zone.
On October 1, 1990, the Minister responsible for the
Department of the Environment issued a permit to Elwin Jay to operate a temporary
excavation pit to expire on October 1, 1991 (Exhibit 2).
On April 10, 1992, Kevin McCarville, Administrator for the
Community of East Royalty, advised Mr. Jay that "the issuance of an excavation
permit for this property would be in clear violation of the East Royalty Zoning and
Subdivision Bylaw (see Section 13.1)" (Exhibit 11).
Further, Mr. McCarville stated in a letter to Mr. Wayne
Crosby, dated April 10, 1992, "Presently there is no excavation permit in place
for this property. The previous permit ... expired on October 1, 1991. Mr. Jay's property
is zoned as Residential Reserve land. This means the land must retain its agricultural
purposes until such time as it is developed for residential purposes" (Exhibit
12).
On April 15, 1992 Elwin Jay and Kim Jay on behalf of Elwin
Jay Holdings Inc. appealed the decision of the Community Council to The Island Regulatory
and Appeals Commission (Exhibit 13).
The Commission heard the appeal on May 26, 1992, in
Charlottetown and issued without reasons Order LL92-5 on July 8, 1992, to allow the
immediate removal of the topsoil stockpiled on the site as a result of the permit issued
by the Department of the Environment for the temporary excavation pit.
II. EVIDENCE AND ARGUMENTS
A. Appellant
Arguments for the Appellant can be summarized as follows:
In the statement of appeal, the Appellants argue that "the
Community of East Royalty has erred in its position that excavation of topsoil contravenes
Section 13.1 of its municipal bylaws."
During the hearing the Appellants argued that the
excavation of topsoil should be considered an agricultural practice and therefore should
be considered a permitted use under Section 13.1 of the East Royalty Zoning and
Subdivision Control Bylaws.
In the statement of appeal (Exhibit 27) the Appellants
further argued:
"It will be recognized that this excavation is an
inherently benign activity which does not pose any environmental threat. It may be argued
that Elwin Jay Holdings Inc. is harvesting topsoil in much the same manner its neighbor
cultivates hay or oats."
In summation, Kim Jay reiterated during her closing
arguments, "the excavation at this particular site is ... arguably agricultural in
character. The process of working up the ground, removing the topsoil, restoring the land
for subsequent recovery has a lot in common with harvesting potatoes or oats or any other
commodity."
B. Community of East Royalty
Arguments for the Community can be summarized as follows:
Cathy Parkman, legal counsel for the Community, argued
that Section 25 of the Environmental Protection Act has particular
relevance to the appeal. Pursuant to this section, the Lieutenant Governor in Council has
the authority to make regulations for the enhancement and protection of the environment.
Ms. Parkman stated that two sets of Environmental
Protection Act Regulations were in effect - the first set came into force on August 17,
1989 (EC485/89) and were in force at the time Mr. Jay made his original application. The
second set of regulations came into effect on November 15, 1990 (EC753/90) which changed
the standards with respect to issuing permits for excavation pits. Under the new
regulations, Section 4.(1)(c) states:
4.(1)(c) Except as provided in subsections (2) and (4), no
permit shall be issued
(c) if the use of the land as an excavation pit would be
in contravention of any other Act, regulation or bylaw;
Ms. Parkman argued that pursuant to Section 13.(1) of the Community
of East Royalty Zoning and Subdivision Control Bylaws, the property is zoned
Residential Reserve, and the use of the land is limited for agriculture until such time as
Council has approved the development of the land for residential purposes. Ms. Parkman
argued that it is the position of the Community that "a commercial soil moving
operation does not constitute an agricultural use and therefore it does not constitute an
accepted agricultural use of the property".
In conclusion, counsel for the Community argued that the
Minister responsible for the Department of the Environment had no alternative but to deny
the permit - based on the fact that the permit, as applied for, would be in contravention
of Section 13.1 of the East Royalty Zoning and Subdivision Control Bylaws.
III. REASONS FOR DECISION
After considering the evidence presented at the hearing,
the Commission decided to deny the appeal but that the Appellant should be permitted to
remove the topsoil stockpiled on the site as a result of the temporary permit issued by
the Department of the Environment. All provisions of the Environmental Protection Act
must be met and the Appellant must acquire all necessary permits required to remove the
existing stock pile. The reasons for the Commission's decision are as follows:
The Commission recognizes that pursuant to Section 4(1)(c)
of the Environmental Protection Act Excavation Pits Regulations, the Minister
responsible for the Department of the Environment has a responsibility to deny an
excavation permit where the land as an excavation pit would be in contravention of a
municipal bylaw.
The Commission is guided by the definition of
"agricultural purposes" as defined under Section 2 of the East Royalty Zoning
and Subdivision Control Bylaws. In this particular case the Department issued a temporary
excavation permit even though an excavation pit is not permitted in a Residential Reserve
Zone.
"agricultural purposes means the use of any land for
the purpose of soil conservation, crop production and/or raising livestock."
The Commission does not accept the Appellant's argument
that the removal of topsoil can or should be considered an agricultural purpose or use.
The Commission does not believe that the activity can fall within the meaning of soil
conservation nor can it be logically categorized crop production or raising
livestock. The Commission finds that allowing the removal of topsoil within a
Residential Reserve Zone is in contravention of the Bylaw and the Community Council could
not issue a permit. Therefore, the appeal is denied.
However, the Commission was faced with deciding what
should happen to approximately 5,400 cubic yards of topsoil stockpiled on the site as a
result of the temporary excavation permit issued by the Department of the Environment. The
Commission found that the Appellant acted in good faith and that he only proceeded to do
what he thought was permitted under the temporary permit and that it would be unfair to
not allow him to remove the stockpile. Consequently on July 8, 1992, the Commission
ordered (Order LL92-5) that the Community Council allow the removal of approximately 5,400
cubic yards of soil from the existing stockpile.
Order
WHEREAS Elwin Jay Holdings Inc. (the
Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in
written notice dated April 15, 1992, against a decision of the Community Council of East
Royalty;
AND WHEREAS the Commission heard the
appeal at public hearings conducted at Charlottetown on May 26, 1992, after due public
notice;
AND WHEREAS the Commission believed it
appropriate to allow the immediate removal of the topsoil presently stockpiled on the site
and as a result issued Order LL92-5 without reasons;
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 11th day of June, 1993.
BY THE COMMISSION:
Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner