Order LA94-15 - LA94015 - Planning Appeal - Clive Pickles v. Alexandra Community Council (Nov 4, 1994)

DOCKET LA94015
ORDER LA94-15

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

and

IN THE MATTER of appeal, under Section 28 of the Planning Act, by Clive Pickles (the Appellant) against a decision whereby the Alexandra Community Council (the Council) deferred approval of a subdivision application for Provincial Property Number 279661 at Alexandra, P.E.I.

DATED the 4th day of November, 1994.

John L. Blakney, Vice-Chairman
Myrtle Jenkins-Smith, Commissioner
Anne McPhee, Commissioner

Order

Appearances & Witnesses

1. For the Appellant

Clive Pickles the Appellant

Catherine M. Parkman Legal Counsel for the Appellant

2. For the Community

Glen Beaton Councillor

Sheila White Administrator

Reasons for Order

I. BACKGROUND

In accordance with the Planning Act, the Alexandra Official Plan and Alexandra Development Bylaw, the Community Council of Alexandra has the authority to approve applications to subdivide land. Pursuant to Section 3 of the Bylaw:

Subject to the provisions of this bylaw, Council shall apply the requirements of Parts I to VIII of the Planning Act Regulations in respect of any development in the Community of Alexandra.

Therefore, Section 24.(1) of the Planning Act Regulations applies within the municipal boundaries of the Community of Alexandra and provides that:

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 has received a certificate of approval therefor from the Minister.

Furthermore, Section 6.(1) of the Bylaw provides that:

No development is permitted except in conformity with this Bylaw and upon the issue of a building permit, subdivision approval or other approval by the Council of an application. (Exhibit C28)

On June 3, 1994, Clive Pickles completed an application for approval to subdivide parcel number 279661 for single family dwelling use. (Exhibit C3)

The Community Council held a public meeting on June 6, 1994, to discuss the application.

On June 7, 1994, the Community advised Mr. Pickles by letter that "a decision has been deferred on this lot for the present time". (Exhibit C1)

On June 20, 1994, Catherine M. Parkman appealed the Community's decision on behalf of Mr. Pickles. (Exhibit B1)

The Commission heard the appeal on October 4, 1994, in Charlottetown.

II. PRELIMINARY MATTERS

Prior to hearing arguments, a preliminary matter was raised regarding the subject of this appeal. The letter of June 7, 1994, to Mr. Pickles from Sheila White states Council's decision was to "defer" its decision regarding the application to subdivide. However, the Appellant's notice of appeal refers to Council's decision to "deny" the application.

Catherine Parkman clarified that the appeal was against the decision of the Community to "defer" its decision on the subdivision application.

III. EVIDENCE AND ARGUMENTS

A. Appellant

Catherine Parkman argued that pursuant to the provisions of Policy 2, outlined under the Community Improvement Committee Responsibilities in the Alexandra Official Plan, the Community exceeded the 30 day period required to reach a decision.

Policy 2

The Community Improvement Committee shall advise the applicant, in writing, within thirty (30) days from receipt of the application, whether it is approved, approved with conditions, deferred for a period not exceeding (30) days, or refused.

Ms. Parkman submitted that Council has effectively postponed further consideration of the subdivision application indefinitely. Her reasons for this submission are: the wording of Council's letter referring to "for the present time" and the fact that there has been no recent decision of Council to approve or deny the subdivision, subsequent to deferring the matter.

The Appellant is seeking to have Council's decision of deferral overturned and requests the Commission to direct Council to make a decision regarding the application to subdivide with guidelines for the decision.

B. Community Council

Sheila White argued that Council deferred its decision on this matter in order to address the concerns as stated in the letter to Mr. Pickles dated June 7, 1994. These concerns include:

The views and opinions expressed by the residents of the community at the above noted public meeting;
The fact that this proposal constitutes a subdivision greater than 5 lots (a major development);
The Alexandra Community Council is currently in consultation with the Provincial Government regarding the proposed "buffer zone" in conjunction with legislation to amalgamate surrounding communities. The proposed "buffer zone" will affect the community of Alexandra, and the community will continue to consult with the Provincial Government to determine what impact this will have. (Exhibit C1)

The Community argued that subsequent to Council making a decision to defer the matter, Mr. Pickles appealed the Community's decision to the Commission. As a result, the Council believed that the filing of the appeal had the affect to suspend any further action by the Council on the application.

Council believed that its decision to defer the matter was justified.

IV. DECISION

After consideration of the evidence and arguments, the Commission believes that it must consider two specific questions: (1) Did the Council have the authority to defer its decision on the application to subdivide and was it a correct decision? (2) If the Council was correct in its decision to defer the matter of the subdivision, did the Council have the right to defer its decision longer than 30 days?

(1) Did the Council have the authority to defer its decision on the application to subdivide and was it a correct decision?

Based on the evidence presented, the Commission understands that the Appellant submitted an application on June 3, 1994. The Community notified the Appellant on June 7 that the decision was deferred. The Commission finds that pursuant to the provisions of Section 11.(1) of the Development Bylaw, the Community's decision to defer the matter was made in accordance with the provisions of the Bylaw.

Section 11.(1) The Council may:

(a) approve;

(b) approve with conditions;

(c) defer for 30 days; or

(d) refuse

an application and shall advise the applicant in writing of its decision within 30 days of receipt of the application. (Emphasis added)

The Commission finds that Council had the right to defer its decision provided it had adequate and legitimate reasons to do so. According to the evidence and arguments the Commission can find nothing to indicate that the Council made an incorrect decision or that it acted in a discriminatory manner or in bad faith.

In the result, the Commission finds that the appeal cannot be allowed on the basis that Council did not have the authority to defer or that it reached an incorrect decision.

(2) If the Council was correct in its decision to defer the matter of the subdivision, did the Council have the right to defer its decision longer than 30 days?

In regard to the argument raised by the Appellant that the Community has exceeded the thirty day period within which to make a decision and should be ordered to make such a decision, the Commission does find merit in this argument.

The Commission can find no authority which supports Council's position that it has a right to suspend further consideration of the application to subdivide until the Commission issues an order with respect to this appeal. The Commission finds that despite the appeal the Council is required to proceed to make a decision on the application within the time period prescribed by bylaw.

The Commission believes that Council does not have the authority to stay the application process and finds that Council must reach a decision within the required thirty day period, regardless of the pending appeal.

The Commission also finds that the 30 day deferral period permitted under subsection 11.(1)(c) has expired.

Although, it is understandable that the Community Council might want to wait until the provincial government has established the regulations regarding the "buffer zone", Council must apply the bylaw provisions in effect at the time the application is under review. In the view of the Commission it would be improper to deliberately defer an application beyond the 30 day deferral period and then apply new rules to the application. It is the Commission's view that the bylaw does not permit the Council to withhold a decision beyond the required time frame prescribed by the bylaw in effect at the time of the application. Even if special circumstances might warrant a delay beyond the expiry of the deferral period, there are no such circumstances evident in this case.

According to Section 28 of the Planning Act any person has a right of appeal to the Commission if he or she is dissatisfied by a decision of a council. The decision of the Council was not to approve or deny the application but only to defer its decision—the specific matter of this appeal. Based on the above the Commission allows the appeal.

In the result, now that the 30 day deferral period has expired and for the reason that the Council had no authority to suspend action on its decision to approve or deny the application to subdivide, the Commission orders the Community Council to review the application for subdivision and issue its decision without delay.

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

and

IN THE MATTER of appeal, under Section 28 of the Planning Act, by Clive Pickles (the Appellant) against a decision whereby the Alexandra Community Council (the Council) denied approval of a subdivision application for Provincial Property Number 279661 at Alexandra, P.E.I.

Order

WHEREAS Clive Pickles (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission) a decision of the Alexandra Community Council (the Council);

AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on October 4, 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 that the Community Council forthwith review the application for subdivision and issue a decision.

DATED at Charlottetown, Prince Edward Island, this 4th day of November, 1994.

BY THE COMMISSION:

John L. Blakney, Vice-Chairman

Anne McPhee, Commissioner

Myrtle Jenkins-Smith, Commissioner