DOCKET LA94010
ORDER LA94-10IN 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 George Gaudet on behalf of certain residents and landowners (the Appellants) against a decision whereby the Southport Community Council (the Council) approved an application to subdivide Provincial Property Numbers 447136 and 458026, located at the intersection of Marjorie Crescent and Millbrook Drive, Southport, Queens County.
DATED the 18th day of July, 1994.
John L. Blakney, Vice-Chairman
Debbie MacLellan, Commissioner
Myrtle Jenkins-Smith, Commissioner
Order
Appearances & Witnesses
1. For the Appellant
George Gaudet the Appellant
2. For the Community
John Mitchell Legal Counsel for the Community
3. For the Developer
John McMillan Legal Counsel for Floyd and Joyce Wood
Reasons for Order
I. BACKGROUND
In accordance with the Planning Act, the Community of Southport Official Plan 1990 and the Southport Zoning and Subdivision Bylaws, the Southport Community Council has the authority to approve the subdivision of land, pursuant to Section 56.(a) of Part VII - General Provisions for Subdivision:
Section 56.
No person shall subdivide land within the boundaries of the Community of Southport unless the subdivision:
a) has approval from the Council;
On September 13, 1993, Floyd Wood and Joyce Wood made application to subdivide lots 25 and 26 of the Leroy Rodgerson Subdivision into lots 25A, 25B and 26.(Exhibit 8)
On April 28, 1994, Council approved the proposed three lot subdivision, subject to Floyd Wood signing a subdivision agreement and receipt of the $70 Subdivision Dedication Fee. (Exhibit 7)
On April 29, 1994, Floyd Wood and the Community of Southport Inc. entered into a Subdivision Agreement. (Exhibit 5)
On May 10, 1994, (date received by Commission) George Gaudet on behalf of certain residents and landowners, appealed the April 28, 1994 decision of Council to approve the three lot subdivision. (Exhibit 3)
The Commission heard the appeal on May 30, 1994, in Charlottetown.
On June 14, 1994, the Commission requested additional information from Honorable Alan Buchanan, Minister, Department of Provincial Affairs as to Governments opinion on what its' intention was when it amended the legislation with the "less stringent" clause.
On July 4, 1994 the Commission received Government's opinion relative to the "less stringent" clause. This information was forwarded to all parties for their response.
II. STATEMENT OF FACTS
- The Minister of Community and Cultural Affairs approved the bylaws of the Community of Southport on October 17, 1990, pursuant to Section 17 of the Planning Act.
- Section 23.1 of the Southport Zoning and Subdivision Bylaws sets out standards for lot area and width:
- Lot area, minimum - 10,000 sq. ft.
- Lot width, minimum - 75 feet
The Planning Act was amended on May 16, 1991 to include Section 8.(1.1): Where a Municipality has an official plan and bylaws, the provisions of the official plan and bylaws shall not be less stringent than the regulations made under this Act on the same subject.
The Southport Community Council did not amend its Zoning and Subdivision Bylaws. On June 12, 1993, the Planning Act Regulations were amended and Section 37 set a minimum lot size requirement of 15,000 square feet with a minimum width of 100 ft. for lots served by on-site water supplies and central sewage disposal systems. The Southport Community Council did not amend its bylaw relevant to lot size and width requirements. On April 29, 1994, the Community of Southport entered into a subdivision agreement with Floyd Wood. The agreement was for three lots measuring approximately: 10,454 sq.ft., 10,018 sq.ft. and 13,068 sq.ft. The lots in question, owned by Floyd and Joyce Wood, are serviced by on-site water and a central sewage disposal system. III. ARGUMENTS
A. Appellants
The principal arguments for the Appellants can be summarized as follows:
The Appellants contend that the Community's bylaws do not adequately reflect the Goals, Objectives and Policies as stated in the Community's Official Plan and as a result, the subdivision should not have been approved.
The Appellants also contend that the Community's bylaw regarding the Residential Single Family Zone does not conform to provincial standards pursuant to the Provisions of Section 8.(1.1) of the Planning Act and Section 37 of the Planning Act Regulations which sets out minimum lot size requirements.
B. Community Council
The principal arguments for the Community Council can be summarized as follows:
On the matter of conformity with the Official Plan, Mr. Mitchell stated that although the bylaws may be weak in aesthetics they were drafted in 1990 based on the Official Plan. The bylaws were approved by Council and also by the Minister and therefore regardless if they are weak in aesthetics they must continue to be applied.
Mr. Mitchell stated the major issue in this case is the construction of statute - specifically Section 8.(1.1) of the Planning Act. The position of the Community pertaining to the effects of the 1991 amendment is the Community's bylaws remain in force and in effect until such time as the Community sees fit to amend them - the legislation is not retroactive.
Mr. Mitchell argued the Provincial Government delegated authority to the Community of Southport to develop bylaws and the Community Council has done this. Pursuant to the provisions of Section 8.1 of the Planning Act, the Planning Act Regulations pertaining to lot size do not apply to Southport because Southport has an Official plan and Bylaws - you cannot, by delegated authority from one body, render null and void the law made by the delegated authority of another body.
C. The Developer
Mr. John McMillan, on behalf of Floyd Wood and Joyce Wood, argued that the central issue in this appeal is the effect of the 1991 amendment to the Planning Act, specifically Section 8.(1.1), and the Order in Council - the Regulation pertaining to lot size requirements - which was passed on June 12, 1993.
Mr. McMillan argued that if the Commission accepts the Appellant's argument, the Commission cannot substitute, in the bylaw, the square footage requirements and the frontage requirement of the regulation passed on June 12, 1993. The Commission has no authority to write law and as a result has no authority to re-write the Southport Zoning and Subdivision Bylaw. If the Commission accepts the Appellant's argument it can rule that the provisions of the bylaw pertaining to minimum square footage and frontage are unenforceable. What remains is a subdivision application that meets all other requirements of the Community's bylaw and Mr. And Mrs. Wood still have an approved subdivision.
Mr. McMillan also argued that Section 8.1 of the Planning Act states that the Lieutenant Governor in Council may make regulations applicable to any area except a municipality with an official plan and bylaw. The legislation clearly states that the Planning Act Regulations were never intended to dictate to municipalities what their bylaws should state.
In conclusion Mr. McMillan argued that Community's bylaws on minimum square footage and frontage are valid and that the amendments to the Planning Act Regulations do not apply.
IV. DECISION
After considering the evidence, the Commission decided to allow the appeal. The reasons for the decision are as follows:
Upon review of the Planning Act, the Commission finds that it is reasonable to conclude that the legislators have made a significant effort to ensure that some consistency prevails in the policy, regulations and bylaws made by both provincial and municipal governments pursuant to the Act.
Section 7 of the Act authorizes Cabinet to:
7(b) establish minimum requirements applicable to official plans.
Clearly the purpose for this subsection is to ensure that the province can influence not only the procedural requirements and content but also minimum requirements and standards for the development of land within municipal jurisdictions that have official plans and are responsible for land use policy (Section 9.(1)).
Furthermore, Section 15(2) assists in ensuring that consistency prevails not only between government jurisdictions but also between official plan policy and implementing bylaws within the boundaries of each municipal jurisdiction that has adopted or is in the process of adopting an official plan.
15.(2) The bylaws and regulations made under clause (1)(d) shall conform with the official plan and in the event of any conflict or inconsistency, the official plan prevails.
Consequently, it is the Commission's view that the legislation makes a special effort to ensure that provincial requirements conform with municipal official plan policy and any bylaw implementing the official plan policy.
Not only does the legislation for all practical purposes ensure consistency in its requirements for official plans and municipal bylaws when the Lieutenant Governor finds it necessary, Section 8.(1.1) guarantees that all provisions of official plans and bylaws are not less stringent than the regulations made under the Planning Act.
Both Mr. Mitchell and Mr. McMillan argued that Section 8.(1) clearly exempts any municipality that has adopted an official plan and bylaw from the Planning Act Regulations. The Commission agrees with this argument; however, the Commission believes that the purpose for Section 8.(1) is to ensure the Planning Act Regulations do not apply in such a way that if one wants to subdivide land in a municipality with an official plan that a subdivider would not have to make application pursuant to the regulations and receive the Minister's approval and meet the specific provisions of the regulations. But Section 8.(1.1) does ensure that the requirements of the official plan and bylaws are not less stringent than the requirements or standards set out under the regulations. It is the view of the Commission that the intention is not to apply the Planning Act Regulations to development proposals within municipalities. However, the specific requirement or standards which authorizes the Lieutenant Governor in Council to create, is a province-wide minimum standard to which community bylaw requirements must adhere. Consequently when the Lieutenant Governor in Council sets a standard for lot size requirements under the regulations or amends or changes the standard then that standard becomes the standard for all official plans and bylaws and no official plan policy or bylaw can be less stringent than the regulations or the standard set out by regulation.
In this case it is clear on June 12, 1993, the Lieutenant Governor in Council established new lot size and lot width requirements or minimum standards by amending Section 37 of the Regulations which in accordance with Section 8.(1.1) automatically established a new standard for official plan and bylaw requirements in accordance with the following:
Table 3
Minimum lot sizes for lots served by on-site water supplies and central sewage disposal systems
Category I 15,000 sq.ft. 100 ft. Wide Category II 15,000 sq.ft. 100 ft. Wide Category III 15,000 sq.ft. 100 ft. Wide It is the opinion of the Commission that once the Lieutenant Governor in Council adopts a new minimum requirement, in this case lot size and width, it establishes a new standard that the municipal official plan policy and bylaw requirement cannot be less stringent than.
In the result, when the Community of Southport Council entered into a subdivision agreement, on April 29, 1994, the Council erred in not using the standard of 15,000 square feet for minimum lot size for lots that are served by on-site water supplies and central sewage disposal system. The Commission finds that the Council did not comply with Section 8.(1.1) of the Act when it approved lots measuring approximately 10,454 sq. ft, 10,018 sq. ft. and 13,068 sq. ft. since the lots are below the minimum requirements as established under Section 37 of the regulations.
The Commission agrees with Counsel for the Community when he argues that the 1994 edition of the Municipal News, the Department's newsletter to the municipalities, is not law. However, the Commission does find it particularly instructive as to what should be considered by municipalities when approving subdivisions, as a result of the amendment to Section 37.
Municipalities that issue their own permits, should not approve new lots smaller than the new standards, with the possible exceptions of lots that will only be used for public open space or for public utilities structures and the like.
Zoning and Subdivision Bylaws should be amended to reflect the new Provincial Standard.
The Commission does not agree with the argument that the new standards or requirements should not apply or cannot apply until a municipal council amends its official plan and bylaws. It is clear from the evidence that the new lot size standards are to address the issue of environmental safety. The Commission cannot accept an argument that would support the conclusion that any municipality could take its time in amending its plan policy and bylaw and in the meantime approve any number of lots below the standard that conceivably could threaten environmental safety after the province establishes a new standard or requirement by regulation to protect the environment. The Commission finds that this is an unreasonable interpretation.
Therefore, the Commission must allow the appeal and quash the decision of Council to approve lots below the requirements as established by Section 37 of the Planning Act Regulations.
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 George Gaudet on behalf of certain residents and landowners (the Appellants) against a decision whereby the Southport Community Council (the Council) approved an application to subdivide Provincial Property Numbers 447136 and 458026, located at the intersection of Marjorie Crescent and Millbrook Drive, Southport, Queens County.
Order
WHEREAS George Gaudet on behalf of certain residents and landowners (the Appellants) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated May 10, 1994, against a decision of the Southport Community Council (the Council);
AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on May 30, 1994, 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 allowed and orders that the decision of Council to approve the subdivision is quashed.
DATED at Charlottetown, Prince Edward Island, this 18th day of July, 1994.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Debbie MacLellan, Commissioner
Myrtle Jenkins-Smith, Commissioner