Order LA94-02 - LA93015 - Planning Appeal - R. Hamill and G. Bradshaw Henderson v. Dept. of Prov. Affairs (Mar 11, 1994)

Docket: LA93015 |
Order: LA94-02

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

and

IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Reginald Hamill and Gladys Bradshaw Henderson (the Appellants) of Searletown, against a decision of the Department of Provincial Affairs (The Department) to deny approval to subdivide parcel (Provincial Property No. 213603) in Searletown, P.E.I.

DATED the 11th day of March, 1994.

Linda Webber, Chairman
James Nicholson, Commissioner
Debbie MacLellan, Commissioner

Order

Appearances

1. For the Appellants

Reginald Hamill for the Appellants

2. For the Department

Allan Parks Property Development Officer

Reasons for Decision

I. BACKGROUND

In accordance with the Planning Act and the Planning Act Regulations, the Minister of Provincial Affairs has the authority to approve proposals for the subdivision of land. Pursuant to Section 24.(1) of the Regulations:

Section 24.(1)

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 received a certificate of approval therefor from the Minister.

On August 12, 1993, Gladys Bradshaw Henderson applied for approval to subdivide property (Provincial Property Number 213603) into two to three lots. The property is located in Searletown, P.E.I.(Exhibit 8)

On September 3, 1993, Allan Parks advised Gladys Bradshaw Henderson by letter that the Department was unable to approve the proposed subdivision pursuant to the combined provisions of Sections 25.(2)(a) and 50.(1)(b) of the Planning Act Regulations. During the hearing Allan Parks clarified that Sections 25.(2)(a) and 50.(b) should have been cited and not Sections 25.(2)(a) and 50.(1)(b). (Exhibit 3)

On September 23, 1993, Reginald Hamill and Gladys Bradshaw Henderson appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit 2)

The Commission heard the appeal on, December 15, 1993, in Charlottetown, P.E.I.

II. EVIDENCE AND ARGUMENTS

A. Appellant

The primary arguments for the Appellant can be summarized as follows:

Mr. Hamill advised the Commission that the property in question (parcel 213603) consists of two parts and is severed by an approved lot (769612) owned by Sandra Bradshaw and Paul Arsenault. One part of the subject property is developed with a house while the second part remains undeveloped. The undeveloped portion has approximately 300 feet of road frontage with a depth of approximately 200 feet. Mrs. Bradshaw Henderson is interested in having the undeveloped portion subdivided into two lots each having 150 feet of frontage.

Mr. Hamill contends that fifteen hundred dollars in taxes could be generated each year if two bungalows could be developed on the parcel.

Mr. Hamill questioned whether the Commission could recommend to government an amendment to the highway collector provisions of the Planning Act - specifically Sections 25.(2) and 50 as they pertain to the subject property on Highway 10 in Searletown.

B. The Department

The primary arguments for the Department can be summarized as follows:

The application was denied pursuant to the combined provisions of Sections 25.(2)(a) and 50.(b) of the Planning Act Regulations. (Exhibit 3)

The subject property is located along Highway #10 which is designated as a Collector Highway. The Department concluded that in 1979 when the Regulation was adopted, the property had less than 10 chains of road frontage thereby limiting subdivision to only one lot. Pursuant to the Regulations, twenty chains of frontage would be required for two lots and thirty chains would be required for three lots.

In 1989, the subject property was subdivided, creating parcel number 769612 which was sold to Sandra Bradshaw. This was the last lot with direct highway access permitted.

The Department argued that further subdivision of the property would only be allowed if a subdivision street were developed to serve the lots or the classification of the highway was changed.

III. DECISION

In deciding this appeal the Commission is bound by the same regulations as the Department. Both must have regard to the matters that are set under the provisions of the Planning Act and the Planning Act Regulations. In this case, foremost among these considerations are those sections which the Department has stated are the reasons for denying the Appellant's application to subdivide - Sections 25.(2)(a) and 50.(b), which pertain to the subdivision of property.

Section 25. (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:

And whereas Section 50.(b) states:

Along any collector highway

(b) no person should subdivide a parcel of land by severing two or more lots unless

(i) the existing parcel of land from which the lots are severed has a frontage of 20 chains or more, in which case one lot may be severed in respect of each 10 chain interval, or

(ii) a subdivision road is prepared to serve the lots;

The Commission finds that the subject property is located along Highway #10, which is designated as a Collector Highway pursuant to the Planning Act Regulations.

The evidence presented indicates that the previous subdivision in 1989 to Sandra Bradshaw and Paul Arsenault, creating parcel number 769612, severed the parent parcel (property number 213603) into two parts - distinctly separated by the new lot but still maintaining one provincial property number. (Exhibit 22) One part of the lot is developed, while the residual remains undeveloped. It is this residual portion which is the focus of the appeal.

Mrs. Bradshaw Henderson is now in a situation where she wants to further subdivide the undeveloped part and is prevented from doing so because the Department says the proposed subdivision does not comply with the Collector Highway provisions of the Planning Act Regulations.

The Department contends that the residual portion of the subject property cannot be further subdivided as proposed by Mrs. Bradshaw Henderson, unless pursuant to the provision of Section 50.(b)(ii), a subdivision road is built to serve the proposed lots. She was informed of this matter by the Department by way of a letter dated August 2, 1989. Specifically Mrs. Bradshaw Henderson was informed "...I have to advise you that the above mentioned lot for Sandra Bradshaw and Paul Arsenault is the last lot which can be severed from your property unless a subdivision road is provided or the classification of the highway is changed to permit additional development..." (Exhibit 4)

The Commission understands from the evidence presented by the Department that the classification of Highway #10 has not changed since the date of that letter, and continues to be designated as a Collector Highway. Therefore according to the Department the only alternative for the applicant is to develop a subdivision road.

On this issue, Mr. Hamill stated during the hearing that they would not be prepared to develop a subdivision road to serve just two lots. Mr. Hamill argued that development of the property should be allowed as this would be the best use of the land. During the hearing Mr. Hamill stated that it is his opinion that it would be much better to have this property generating tax revenue from a couple of new homes rather than leaving it woodland as it presently is.

The Commission must agree with the Department that the proposed subdivision does not meet the requirements of the Regulations - in order to allow an additional two (2) to three (3) lots, an additional twenty to thirty chains of frontage would be required or a subdivision road would need to be developed.

We, too, are bound by these regulations subject to any successful argument about the invalidity of the rule or the possible application of the minor variance rule. The only attempt to argue invalidity was on the basis of "unfairness" and we cannot overrule a regulation simply because it may appear unfair to one party. One could argue minor variance even though this was not raised by the Appellant. However, in this case while the intensity of use if a subdivision road is put in would appear no greater than if a driveway were put in to service two lots, it is likely that the cost of putting in the subdivision road would discourage the proposed development. Since this appears to be the intent of the rule, we can't consider the proposal a minor variance.

At the same time, however, in our view the problem faced by Mrs. Bradshaw Henderson is the result of the failure of the Department to ensure proper design standards were adhered to when permission was first granted to subdivide the parent parcel. From the evidence submitted it appears that approval to subdivide was granted to satisfy the request of the Appellant. However, it is not known if the Appellant understood the consequences of her application at that time.

Although the original subdivision met all the technical requirements at the time, it must be considered deficient from the perspective of land use planning principles. At the time of the original subdivision more consideration should have been given to efficiently using the land while maintaining the intent and purpose of the Collector Highway provisions - other configurations for the subdivision would have allowed this to be achieved without creating an apparent "parcel" with no obvious usefulness. The results of the Department's failure to do this is a parcel of land with limited development potential.

In response to Commissioner Nicholson's question during the hearing, as to whether, in this situation, the Department suggested a better subdivision design, Alan Parks stated: "the Department has no legal right to tell somebody where to purchase the piece of property - it's their prerogative...". In our view the Department does have a responsibility to ensure the most efficient use of the land is achieved when approving subdivisions. This responsibility is embodied within the provisions of the Statement of General Planning Principles and Policies under the Planning Act Regulations, specifically Part 1, Section A.(a)(iv) which states:

Part V (Subdivision regulations) is designed to achieve the following goals

(a) generally

(iv) to promote good subdivision design and practice in accordance with recognized standards and principles...

On this matter, the Commission is of the opinion that procedures should be put in place to discourage subdivisions such as this that result in the creation of parcels having limited or no development potential under the Planning Act Regulations. This will go towards ensuring that problems such as this don't arise in the future. However, it does not assist the Appellant. Unfortunately, for all the reasons given above, the appeal must be denied.

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

and

IN THE MATTER of an appeal to The Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Reginald Hamill and Gladys Bradshaw Henderson (the Appellants) of Searletown, against a decision of the Department of Provincial Affairs (The Department) to deny approval to subdivide parcel (Provincial Property No. 213603) in Searletown, P.E.I.

Order

WHEREAS Reginald Hamill and Gladys Bradshaw Henderson (the Appellants) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated September 23, 1993, against a decision of the Department of Provincial Affairs;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown, P.E.I., on Wednesday, December 15, 1993, after due public notice;

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 March, 1994.

BY THE COMMISSION:

Linda Webber, Chairman

James Nicholson, Commissioner

Debbie MacLellan, Commissioner