Order LA94-07 - LA94002 - Planning Appeal - First Congretional Church of P.E.I. v. Dept. of Provincial Affairs (Jun 29, 1994)

DOCKET LA94002
ORDER LA94-07

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

and

IN THE MATTER of an appeal, under Section 28 of the Planning Act, by the First Congregational Christian Church of P.E.I. (the Appellants) against a decision whereby the Department of Provincial Affairs (the Department) denied an application by Lloyd Elderkin to subdivide a lot for a church from Provincial Property Number 290270 located at Pleasant Valley, Queens County.

DATED the 29th day of June, 1994.

Linda Webber, Chairman
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner

Order

Appearances & Witnesses

1. For the Appellants

John R. Bennett Pastor, First Congregational Christian Church of P.E.I.

Ronald MacInnis in support of the Appellant

2. For the Department

Allan Parks Property Development Officer

Kent Smith Traffic Operations Technician, Department of Transportation and Public Works

Gary MacLure Regional Engineer, Department of Transportation and Public Works

Reasons for Order

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 January 8, 1994, Lloyd Elderkin applied for approval to subdivide property (Provincial Property Number 290270) into two lots. The existing use of the property is agricultural and the proposed use of the severed lot is for a church. The property is located in the community of Pleasant Valley.(Exhibit 7)

On January 24, 1994, the Department notified Rev. Bennett by letter that the application to subdivide was denied.(Exhibit 3)

On January 28, 1994, Rev. John R. Bennett appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit 2)

The Commission heard the appeal on April 6, 1994, in Charlottetown.

II. EVIDENCE AND ARGUMENTS

A. Appellants

In his letter of appeal Rev. Bennett raised several arguments. These are summarized as follows:

Route 2 has only one westbound lane through the intersection in question. It is true that two lanes are merging or tapering to one at the top of the hill coming out of the valley, however the merge is complete well before the intersection of the old Junction Road.

The only significant traffic generated would be on Sunday morning, which is a relatively quiet time on Route 2.

The location in Pleasant Valley is good primarily because it is both level and accessible to the arterial route.

Many people in the area would be in favor of having an active church in their community which is locally owned.

During the hearing Rev. Bennett stated that if permitted the Church would take responsibility for upgrading a portion of the old Junction Road which would be utilized as an access to the proposed lot. As the Church would be responsible for maintenance and snow removal, there would be no public expense. Rev. Bennett contends this entrance would provide for safe access to Route 2.

B. Department

In the letter to Rev. Bennett dated January 24, 1994, the Department presented reasons for denying the application:

This property is located at the intersection of the non-essential old Junction Road and the Malpeque Road. The proposed lot fronts on both roads. Development of any nature is not permitted on any road with a non-essential designation. Route 2 is an arterial highway and this section of the Route 2 has one lane eastbound and two lanes merging or tapering to one through the intersection.

This type of development is not permitted under the Roads Act Arterial Highway Regulations.

Therefore, pursuant to the combined provisions of Sections 1.1 and 25(2)(c) of the Planning Act Regulations, the Department would not be able to approve the proposed lot.

During the hearing Mr. Parks stated that if the old Junction Road was to be used as a private driveway, as proposed by the Church, then an entrance way permit would be required to access the arterial highway.

Kent Smith stated during the hearing that the proposed lot does not have direct access to Route 2 and no development is permitted along the old Junction Road which is designated as a non-essential road. However, in a letter to the Commission he later clarified that the old Junction Road was a public road and was designated as non-essential, by policy, and not by regulation. As a result, no entranceway permit is required.

The Department stated during the hearing that the issue of safety was not the basis for the denial of the application.

III. DECISION

The Commission has considered the arguments presented by both parties, and has focused its decision on two major issues.

The Department's principal arguments for denying the application to subdivide are based on Sections 1.1 and 25.(2)(c) of the Planning Act Regulations. (Exhibit 3)

Where Section 1.1 states:

1.1 Notwithstanding any provisions of these or any regulations made pursuant to the Planning Act, no building permit and no approval for the subdivision of land shall be granted by the Minister where an entranceway permit is required to be obtained from the Minister of Transportation and Public Works until an entrance way permit has first been granted.

And where Section 25.(2)(c) states:

25.(2) No person shall be permitted to subdivide land if, in the opinion of the Minister, the proposed subdivision

(c) would precipitate premature development or unnecessary public expenditure, or would place undue pressures on the municipality or the province to provide services;

The Commission understands that the Appellants are requesting access to the arterial highway by way of the old Junction Road. Accordingly, the request is to provide access from the proposed lot to the old Junction Road. An entrance way permit is not required to access to the old Junction Road.

The evidence is that the Minister of Transportation and Public Works will not grant an entrance way permit because the old Junction Road is designated, by policy, to be non-essential. As a result, no development is permitted, and therefore the application to subdivide cannot be approved.

The Commission finds the provisions of Section 1.1 of the Roads Act does not require an entrance way permit in this case because ...

According to Section 29.(1) of the Roads Act, the Lieutenant Governor in Council may designate a road to be non-essential.

29.(1) The Lieutenant Governor in Council may, by notice published in the Gazette, designate and classify any highway or part thereof, not being a controlled access highway, as

(a) arterial;

(b) collector;

(c) local;

(d) seasonal;

(e) non-essential,

and may make regulations respecting the construction or use of any private road, entrance-way or gate opening onto the class of highways so designated.

Upon reviewing the Roads Act Regulations the Commission finds that, to date, the Lieutenant Governor in Council has not designated the old Junction Road non-essential and therefore the entrance way requirements pursuant to the Roads Act cannot apply to this road. From all the available evidence it appears that the old Junction Road continues to exist as an unpaved road subject to the provisions of Section 48.1(d) of the Planning Act Regulations.

Therefore, the Appellant's proposed subdivision must meet the requirements of Section 50.2 of the Planning Act Regulations regarding restrictions on development on local highways.

In these circumstances no entrance way permit is required to access the old Junction Road; therefore, the Department's reliance on Section 1.1 to deny the application to subdivide is not valid.

On the issue of Section 25.(2)(c) regarding public expenditure, the Commission heard evidence from the Department of Transportation and Public Works that both the old Junction Road and Route 2 - the Arterial Highway (at the intersection of the old Junction Road and Route 2) will require upgrading to accommodate the proposed development.

The Appellants stated in their letter of appeal that they "are prepared to absorb responsibility for the maintenance of the old Junction Road...". (Exhibit 3)

During the hearing Kent Smith stated that under the Roads Act the developer could be responsible to bear the cost of upgrading the intersection resulting from the development. According to the evidence of the Appellants they would be willing to pursue this possibility and eliminate the problem of "unnecessary public expenditure".

IV. CONCLUSION

The Commission allows the appeal on the basis the Department's decision with respect to applying Section 1.1 is not valid and the Appellants should be provided with the opportunity or option pursuant to Section 25.(2)(c) to satisfy the "unnecessary public expenditure" requirement.

The decision of the Department to deny the application to subdivide property number 290270 is therefore quashed and the Commission orders the subdivision to be approved provided the Appellants can overcome the provisions of Section 25.(2)(c) of the Planning Act, satisfy the Minister that no unnecessary public expenditures would be incurred as a result of the subdivision, and meet any other applicable statutory requirements.

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

and

IN THE MATTER of an appeal, under Section 28 of the Planning Act, by the First Congregational Christian Church of P.E.I. (the Appellants) against a decision whereby the Department of Provincial Affairs (the Department) denied an application by Lloyd Elderkin to subdivide a lot for a church from Provincial Property Number 290270 located at Pleasant Valley, Queens County.

Order

WHEREAS the First Congregational Christian Church of P.E.I. (the Appellants) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated January 28, 1994, against a decision of the Department of Provincial Affairs (the Department);

AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on April 6, 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 the decision of the Department to deny the application to subdivide property # 290270 is quashed. And in addition, it is ordered that the Department approve the subdivision provided the Appellants can satisfy the Minister that no unnecessary public expenditures would be incurred as a result of the subdivision and can meet any other applicable statutory requirements.

DATED at Charlottetown, Prince Edward Island, this 29th day of June, 1994.

BY THE COMMISSION:

Linda Webber, Chairman

John L. Blakney, Vice-Chairman

Anne McPhee, Commissioner