
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