Docket LA94037
Order LA95-13IN THE MATTER of an appeal under the Planning Act by Rev. Arthur J. Pendergast against a decision of the Department of Provincial Affairs and Attorney General, dated October 25, 1994.
BEFORE THE COMMISSION
on Wednesday, the 28th day of June, 1995.
Linda Webber, Chair
James Nicholson, Commissioner
Debbie MacLellan, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion & Findings
3. Disposition
Order
Appearances & Witnesses
1. For The Appellant
Counsel:
John L. MacDougallAppellant:
Rev. Arthur J. Pendergast2. For The Department
Counsel:
L. Adele MacLeodWitnesses:
John Pickard
Reasons for Order
1. Introduction
This is an appeal under the Planning Act, R.S.P.E.I. 1988, Cap. P-8 by Rev. Arthur J. Pendergast (the Appellant). The Appellant is appealing a decision whereby the Department of Provincial Affairs and Attorney General (the Department) denied an application to subdivide Parcel Number 760629 located at Darnley.
In accordance with the Planning Act and the Planning Act Regulations, the Minister of Provincial Affairs and Attorney General has the authority to approve applications for the subdivision of land. Pursuant to Section 24.(1) of the Planning Act 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 October 10, 1994, Rev. Arthur J. Pendergast applied for approval to subdivide a twenty acre parcel, Provincial Property Number 760629, into nine lots. The property is located in Darnley, P.E.I. (Exhibit D1).
By letter dated October 25, 1994, John Pickard notified Rev. Pendergast that the application to subdivide was denied. The Department cited Sections 2.6(1) and (2) of the Coastal Area Regulations as reasons for this denial and stated "... subdivisions larger than three lots may be approved only within 1,000 feet of the shoreline; farther back, no more than three lots per property are permitted. Since you wish to establish nine lots beyond the 1,000 foot boundary, approval is not possible" (Exhibit D5).
On November 7, 1994, Rev. Arthur J. Pendergast appealed the decision of the Department to The Island Regulatory and Appeals Commission (Exhibit A1).
The Commission heard the appeal on March 30, 1995, in Charlottetown. On the Appellant's motion and with the concurrence of the Department, the matter was adjourned pending receipt of final arguments from the parties. The Commission received final arguments from the Appellant on April 10, 1995 and from the Department on April 19, 1995.
2. Discussion & Findings
The Appellant takes the position that "areas" in section 2.6(1) should be broadly defined to encompass not just the land which is proposed for the division of lots, but also the rights-of-ways, the buffer zones, the green areas and the common areas. The Appellant submits that "areas" should receive a liberal interpretation to allow the subject land, including the triangular common area to be included in the area within 1,000 feet of the shore. The Appellant argues that by this interpretation, the Minister may permit a subdivision in excess of three lots to be located outside the 1,000 foot development area.
The Appellant contends the Department incorrectly rejected the application solely on the narrow interpretation of "areas", wrongly holding that the proposed subdivision was in an area outside a distance of 1,000 feet from the shore. The Appellant requests the appeal be allowed and the application be remitted back to the Department to determine whether the application meets the other criteria set out in section 2.6(1) of the Coastal Area Regulations.
The position of the Department is that the area for which subdivision approval was sought lies outside the area defined as being within 1,000 feet of the shoreline, and therefore is limited to subdivision of three lots or less. The Department submits that any application for subdivision in excess of three lots which must lie outside the 1,000 foot area, and pursuant to either subsections 2.6(1) or (2) of the Regulations, must be considered in conjunction with subsection 2.6(5) before approval could be granted.
The area of the triangular spur which is within 1,000 feet of the shoreline is substantially smaller that the remainder of the parcel held by the Appellant. The Department argues that if property number 760629 was considered pursuant to subsection 2.6(1) to include the triangular common area, the Appellant would be more restricted by the effect of subsection 2.6(5), than if the application was made under subsection 2.6(2) alone.
The Department contends that the application was appropriately considered and seeks to have the appeal denied.
After giving careful and full consideration to the evidence submitted in this case it is the decision of the Commission to deny the appeal. The reasons for the Commission's decision are as follows:
The Commission has reviewed the policy adopted by Executive Council effective June 12, 1993, pursuant to Section 7 of the Planning Act, entitled Planning Act Princetown Point - Stanley Bridge Area Policy and finds that in accordance with Section 3.(2)(a) it is the policy of the Province that:
future residential subdivisions in excess of three lots will be encouraged to locate within 1000 feet of the shore, except where topographical or environmental considerations would require a subdivision to be located outside the 1000 foot area:
(Exhibit D6)
The Commission has also reviewed the Coastal Area Regulations and finds that pursuant to the provisions of Section 2.6(1):
Residential subdivision in excess of 3 lots shall be permitted only in areas within 1000 feet of the shore, except where topographical or environmental conditions are unsuitable, in which case, the Minister may permit a subdivision to be located outside the 1000 foot development area.
Based on the evidence presented, the Commission finds the location of the subject parcel lies within the Princetown Point-Stanley Bridge Area pursuant to the provisions of the Coastal Area Regulations (Exhibit D6). The subdivision application is for nine lots and according to the evidence submitted by the Department, the area to be subdivided is outside a distance of 1,000 feet of the shore (Exhibit D2).
The Policy adopted by the Province and the Regulations are very specific as to the limitations on the number of lots to be subdivided and the location of the area to be subdivided relative to the shore. In reviewing the evidence presented by both parties, the Commission believes that the proposed subdivision fails to meet the requirements as set out in the Policy and the Coastal Area Regulations.
The Commission finds the Department has applied the provisions of the Coastal Area Regulations and the departmental policy appropriately and therefore must deny the appeal on these grounds.
With respect to the Appellant's argument that a liberal interpretation should be applied to the definition of "areas" and the triangular common area should be considered part of the parcel, the Commission must agree with the Department that this would further limit the amount of land to be subdivided.
Pursuant to the provisions of Section 2.6(5):
Where a residential subdivision in excess of 3 lots is permitted outside the 1000 foot area, it shall be located as near as possible to the 1000 foot development area, and shall not exceed in size 50% of the original land area contained within the 1000 foot boundary for the existing land parcel.
The Commission believes the application of Section 2.6(5) would limit the amount of subdivision to 50% of that area within 1000 feet of the shore. As evidenced in Exhibit D2, the area contained within 1000 feet of the shore would not provide enough area to allow the proposed subdivision.
3. Disposition
For the reasons stated the appeal is denied.
IN THE MATTER of an appeal under the Planning Act by Rev. Arthur J. Pendergast against a decision of the Department of Provincial Affairs and Attorney General, dated October 25, 1994.
Order
WHEREAS Rev. Arthur J. Pendergast (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission) in written notice dated November 7, 1994, against a decision by the Department of Provincial Affairs and Attorney General;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on March 30, 1995 after due public notice;
AND WHEREAS the Commission has issued its findings in this matter in accordance with the Reasons for Order issued with this Order;
NOW THEREFORE, pursuant to the Island Regulatory and Appeals Commission Act and the Planning Act
IT IS ORDERED THAT
1. The appeal is hereby denied.
DATED at Charlottetown, Prince Edward Island, this 28th day of June, 1995.
BY THE COMMISSION:
Linda Webber, Chair
James Nicholson, Commissioner
Debbie MacLellan, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
12. The Commission may, in its absolute discretion, review, rescind or vary any order or decision made by it or rehear any application before deciding it.
Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.
Sections 13.(1) and 13(2) of the Act provide as follows:
13.(1) An appeal lies from a decision or order of the Commission to the Appeal Division of the Supreme Court upon a question of law or jurisdiction.
(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.