Docket: LA93018
Order: LA94-03IN 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 Eugene McCarthy and Vivian McCarthy (the Appellants) of St. Marys Road, against a decision of the Department of Provincial Affairs (The Department) to deny approval for a building permit to build a single family dwelling on property (Provincial Property No. 256800) at St. Marys Road, P.E.I.
DATED the 15th day of March, 1994.
John L. Blakney, Vice-Chairman
James Nicholson, Commissioner
Michael Ryan, Commissioner
Order
Appearances
1. For the Appellant
Eugene McCarthy the Appellant
Robert Millar in support of the Appellant
2. For the Department
Niall MacKay 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 or deny the issuance of building permits for single-family dwelling use.
On July 16, 1993, Eugene McCarthy completed an application for a building permit and submitted it to the Department for approval. The application was to develop a single-family dwelling on property (Provincial Property Number 256800) located in the community of St. Marys Road. (Exhibit 13)
On July 19, 1993, Niall MacKay, Property Development Officer with the Department, prepared a Pre-Development Inspection Report and indicated that sight distance was not adequate. (Exhibit 12)
On August 2, 1993, Kevin Campbell, a representative of the Department of Transportation and Public Works, sent a memorandum to Niall MacKay stating:
"1. Route 318, 80 km/hr Local.
(Exhibit 11)2. There is not safe access to this property. Please advise if you wish a copy of the profile."
On August 4, 1993, Eugene McCarthy and Vivian McCarthy contacted the Department by letter and requested "a new look" at their application for a building permit. (Exhibit 10)
On September 29, 1993, the Department advised Mr. McCarthy that pursuant to Section 15(2) of the Planning Act Regulations, the application was denied "because the dwelling would be served by an access driveway which has unsafe sight distance. In this case, the creation of a new highway access driveway or the intensification of use of an existing driveway would increase the potential for a highway accident." (Exhibit 3)
On October 15, 1993, Eugene McCarthy and Vivian McCarthy appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit 2)
The Commission heard the appeal on Wednesday, November 19, 1993, in Charlottetown, P.E.I.
The Commission visited the site on November 26, 1993.
II. EVIDENCE AND ARGUMENTS
A. Appellant
The primary arguments for the Appellant can be summarized as follows:
The Appellant stated during the hearing that the property has been in the family for 80 to 100 years and over this period there have been at least three entrances or driveways to the property. Currently there are two access driveways to the property, one provides access to a lot owned by Kevin Matheson which was subdivided approximately fourteen years ago from the parent parcel and the second provides access to a woodlot. The Appellant contends that the woodlot entrance, the entrance to the Matheson property or a new entrance could be used to provide access to the proposed lot.
The Appellant disagrees with the findings of the Department on the matter of safe access and recounted that from his observations, sight distance should not be a problem: "it is possible to see a car approaching from the east for at least two minutes and the tail lights could be seen for approximately three minutes moving to the west. There is at least 3-5 miles of clear visibility." In addition, the Appellant submitted there will be no more than two people living in the house with at the most two vehicles, and as a result the proposed access would not be used anymore than four to five times each day. To support his arguments on sight distance, the Appellant presented several witnesses during the hearing who stated that from their observations safe access to the property should not be a problem.
The Appellant states in his letter of appeal: "there is a lot of new homes being built and in more dangerous places" and requests the Commission to take this matter into consideration in deciding the appeal.
In addition to these issues, Robert Millar argued on behalf of the Appellant, that there were a number of forms that were not completed properly by officials of the Department or were incomplete and as a result should be declared inadmissible by the Commission.
Mr. Millar also argued that the sight distance profile as submitted by the Department should be declared inadmissible because the visual representation is distorted by the difference in scaling between the elevation and distance.
B. The Department
The primary arguments for the Department can be summarized as follows:
Niall MacKay stated that after receiving the application for a building permit from Mr. McCarthy he carried out an inspection of the property and conducted a "cone test" to determine whether sight distance was adequate. Upon completion of the inspection, Mr. MacKay concluded that the sight distance was not adequate and requested Mr. Kevin Campbell from the Department of Transportation and Public Works to conduct additional testing. The results of the test confirmed that sight distance was inadequate for the location or intensification of an access driveway along the frontage of the property.
The Department notified Mr. McCarthy that pursuant to Subsection 15(2) of the Planning Act Regulations, his proposal was denied because the dwelling would be served by an access driveway which has unsafe sight distance. (Exhibit 3)
With respect to the admissibility of specific documents before the Commission, Mr. MacKay testified that he prepared the documents in question and acknowledges that the documents were incomplete and unsigned. Mr. MacKay added that this issue had no bearing on the final decision of the Minister.
III. DECISION
Having considered the evidence presented during the hearing, the Commission decided to deny the appeal. The reasons for this decision are as follows:
In deciding this matter the Commission is guided by Section 15.(2) of the Planning Act Regulations, which pertains to sight distance.
Section 15. (2)
No building permit shall be issued for any parcel of land where the entrance way would have unsafe sight distance by reference to Schedule C to Part VI of these regulations.
And whereas Schedule C to Part VI of the Regulations provides sight distance standards for access driveways along collector highways. It is the Department's evidence that the St. Marys Road is designated as a collector highway under the Planning Act Regulations and therefore classified under Schedule C as a collector. Schedule C states:
Access driveways to be used or established on arterial highways, collector highways, local highways and unpaved roads shall have a minimum sight distance to be measured by the following calculations: (Emphasis added)
A vehicle operator approaching an access driveway with eye level 3.5 ft. (1.05 meters) above grade shall be able to see any object larger than 16 inches (0.4 meters) in height at the driveway for a minimum distance of 462 ft. (140 meters). A farm access driveway shall be exempt from this requirement.
462 feet (140 meters) - minimum
495 feet (150 meters) - desired
The Department concluded, based on the tests carried out, that a permit to build a single family dwelling on the lot must be denied because the entrance way would have unsafe sight distance.
Based on the evidence of the Department and the Commission's observations at the site, the Commission concludes that there is no point along the road frontage of the lot where an entrance way would be safe in accordance with the minimum sight distance standards as set out by the Regulations. The profile presented by the Department supports this finding
where several entrance way points along the frontage of the property were assessed and it was determined that at no point along the frontage could an entrance way be located and meet the minimum requirements of the Regulations.
The Commission is convinced, based on the evidence, that the location of an access driveway or the intensification of an existing driveway to the subject lot would establish an unsafe sight distance for on-coming traffic and the residents who would occupy the dwelling and lot. The Commission believes that safety of the travelling public is of paramount concern in such a case.
The Commission is always appreciative of the interest members of the public have in land related issues and their comments; however, the evidence heard from the Appellant's witnesses and members of the public can only be considered opinion evidence with respect to the specific issue of sight distance. The Commission's view is that regardless of whether or not the Appellants or those who appeared in their support have experienced any problems with safety because of sight distance, their opinion in this case on what may be considered safe is not enough reason for the Commission to disregard the minimum standards required of the Regulations and allow the appeal. This would be tantamount to the Commission making its own Regulation which clearly it cannot do.
Even if access driveways have been permitted in the past that do not meet sight distance standards it is not enough reason to allow another unsafe access.
In regards to Mr. Millar's concern over the admissibility of the unsigned documents prepared by the Department, specifically the Pre-Development Inspection Report (Exhibit 12) and the Department's certifying signature on the Application for a Building Permit (Exhibit 13), the Commission believes it only reasonable that one would sign a report when completed. However, to the Commission's knowledge there is no legal requirement for property development officers to sign inspection reports, even though provision is made on the form to do so. The form is an administrative form and not founded in regulation. In this situation, the completion of such documents is purely an administrative and not a legal requirement and therefore not one to cause the decision of the Minister to be faulty. It is the Commission's view that the documents can be used in evidence since Mr. MacKay confirmed under oath that he had prepared them.
The Commission agrees with Mr. Millar's argument that on the profile, as completed by the Department of Transportation and Public Works, the vertical elevation is scaled differently from horizontal distance and does distort the vertical visual image. However, the Commission accepts the profile as accurately representing distance and believes it useful in accurately measuring sight distance and supporting the fact that no point of access along the road frontage of the property can meet the sight distance standard contained in Schedule C.
For the reasons outlined above, the appeal is 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 Eugene McCarthy and Vivian McCarthy (the Appellants) of St Marys Road, against a decision of the Department of Provincial Affairs (The Department) to deny approval for a building permit to build a single family dwelling on property (Provincial Property No. 256800) at St. Marys Road, P.E.I.
Order
WHEREAS Eugene McCarthy and Vivian McCarthy (the Appellants) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated October 15, 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, November 19, 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 15th day of March, 1994.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
James Nicholson, Commissioner
Michael Ryan, Commissioner