DOCKET LA94021
ORDER LA94-16(A)IN THE MATTER of the Planning Act, R.S.P.E.I. 1988, Cap. P-8;
and
THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by David Daughton (the Appellant) against a decision of the Department of Provincial Affairs (the Department) to deny approval to subdivide a parcel (Provincial Property Number 637447) located at Bideford, Prince Edward Island, for a single-family dwelling.
DATED the 21st day of November, 1994.
Linda Webber, Chairman
James Nicholson, Commissioner
Mike Ryan, Commissioner
Order
Appearances & Witnesses
1. For the Appellant
David Daughton, Appellant
2. For the Department
Gerald McMillan, Property Development Officer
Reasons for Order
I. BACKGROUND
By letter dated May 10, 1994, (Exhibit C-8) David Daughton informed Gerald McMillan, Property Development Officer for the Department of Provincial Affairs that he wanted to sever a 2-acre parcel from his existing lot so that the 2-acre parcel could be sold to a family "to build a home." He asked for approval to sever the lot and advice on how to proceed to obtain this approval.
Following this, Gerald McMillan completed a Development Officer's Pre-Development Inspection Report (Exhibit C-4) which reported on test pit findings for the area in question. The conclusion reached by the Department of Provincial Affairs was that the site was unsuitable for development.
As a result, by letter dated July 18, 1994 Gerald McMillan informed Mr. Daughton that the request to subdivide a residential lot from property #637447 at East Bideford was denied (Exhibit B2). Sections 19 and 25 of the Planning Act Regulations were cited as reasons for this denial.
Mr. Daughton filed an appeal of this decision on July 28, 1994. The Notice of Hearing was published in the Guardian Newspaper on October 25, 1994 and the hearing was held on November 1, 1994.
II. DECISION
Mr. Daughton's appeal with respect to the use of Section19 of the Planning Act Regulations to deny his application is that there are acceptable methods of sewage disposal that do not involve septic tile fields and those weren't considered. There does not appear to be any disagreement on this point. Mr. McMillan acknowledged the fact that other methods do exist and may meet environmental requirements.
More to the issue is how relevant the existence of those alternative methods are to the application to subdivide land. In Mr. Daughton's opinion, until one is ready to develop land this issue is irrelevant. His desire to sell the land, he states, is simply a matter of changing one owner for another -- without any need for considering the use either owner might wish to make of the land.
Mr. Daughton adds that since the Minister has power to set conditions on approvals, if the Department has concerns about someone trying to put in a septic tile field on the site, all that is required is a condition on the permit that such a tile field would not be permitted and a method for sewage disposal would have to be designed to meet the Department's requirements.
In response, Mr. McMillan refers to Section 25 of the Planning Act Regulations:
25.(1) Any person wishing to subdivide land shall show to the satisfaction of the Minister that all land to be subdivided and the subdivision thereof is suited to the purpose for which the subdivision is intended having regard to
(a) topography and physical conditions of the land;
(b) soil characteristics;
(c) surface drainage;
(d) potential flooding, subsidence and erosion;
(e) location, convenience and safety of access;
(f) availability, adequacy and the economical provision of utilities and services;
(g) existing use of land in the immediate vicinity;
(h) segregation of traffic flow as between main and minor thoroughfares;
(i) the dimension, shape, orientation and accessibility of each lot of land; and
(j) the intended use of the land.
(2) No person shall be permitted to subdivide land if, in the opinion of the Minister, the proposed subdivision
(a) does not conform to these regulations;
(b) would be detrimental to the convenience, health or safety of occupants in the vicinity or the general public;
(c) would precipitate premature development or unnecessary public expenditure, or would place undue pressures on the municipality or the province to provide services; or
(d) would result in undue damage to the natural environment.
He interprets that section as requiring an applicant to state what he intends to use the land for, and as placing the onus upon the applicant to show that the requirements of subsection .25(1) have been met.
We must agree with Mr. McMillan. The Regulation is very clear in placing the onus upon the applicant wishing to subdivide land to indicate its intended use and how the requirements set out in subsection 25(1) will be met.
Mr. Daughton spent a considerable amount of time giving reasons why it should not be necessary to state your intended use or plan ahead for future requirements such as sewage disposal. While his arguments were interesting and well put, we are not in a position to either amend or ignore the legislation.
No doubt arguments could be put forward as to why subsection 25(1) requirements are necessary and if this had been done Mr. Daughton may have been less frustrated by his apparent desire to understand why the requirement exists.
However, it is clear that these requirements exist. It is also clear that Mr. Daughton applied to sever the lot for the purpose of creating a single family dwelling.
During the hearing Mr. Daughton stated that he didn't really care about the single family dwelling; he just wanted the lot severed. He stated that he spoke by telephone with several people in the Department about this. Nevertheless, the letter that began the process is clear about the intent and the Department had to respond to that letter. Suggestions made in subsequent telephone conversations could not be expected to amend that letter. As Mr. McMillan stated, if Mr. Daughton wishes to apply to sever a lot for single family recreation use, he is still free to do so. Different criteria will apply and these will be the basis for the decision.
Given the circumstances of this application, the appeal must be dismissed.
We do have some concerns about the Department's decision-making in that it appears to state categorically that because the land is not suitable for a tile field "the site is unsuitable for development." This is stated in spite of the fact that there is no legislative requirement to dispose of sewage in that manner. While the onus would appear to be on the applicant to propose a system that will meet the province's requirements, there is more than one way to do this.
In light of this, we suggest the Department consider rewording its decisions. While a tile field may be the most common and likely system to be used, applicants should not be misled into thinking the door is closed to other alternatives.
IN THE MATTER of the Planning Act, R.S.P.E.I. 1988, Cap. P-8;
and
THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by David Daughton (the Appellant) against a decision of the Department of Provincial Affairs (the Department) to deny approval to subdivide a parcel (Provincial Property Number 637447) located at Bideford, Prince Edward Island, for a single-family dwelling.
Order
WHEREAS David Daughton (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated July 28, 1994, against a decision of the Department of Provincial Affairs;
AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on November 1, 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 dismissed.
DATED at Charlottetown, Prince Edward Island, this 21st day of November, 1994.
BY THE COMMISSION:
Linda Webber, Chairman
James Nicholson, Commissioner
Mike Ryan, Commissioner
