DOCKET LA94036
ORDER LA95-02
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 David MacPhail (the Appellant) against a decision whereby the Department of Provincial Affairs (the Department) denied an application to subdivide nineteen lots from Provincial Property Number 228593 located at Meadowbank, P.E.I.
DATED the 14th day of March, 1995.
John L. Blakney, Vice-Chairman
Myrtle Jenkins Smith, Commissioner
Anne McPhee, Commissioner
Order
Appearances & Witnesses 1. For the Appellant
2. For the DepartmentDavid MacPhail Appellant
Barbara F. Stevenson
Legal Counsel for the Appellant
Kingsley Lewis Manager, Provincial Planning
Don Walters Chief Development Officer
John Pickard Supervisor, Subdivision Development Section
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.
The following summarizes, in chronological order, the significant events which occurred prior to the Commission hearing this appeal:
On May 25, 1994, David MacPhail applied for approval to subdivide (Provincial Property Number 228593) into nineteen (19) lots. The existing use of the property is agricultural and the proposed use is for single family residential. The property is located in Meadowbank, P.E.I. (Exhibit C16)
The Department circulated the application to the Community of Meadowbank on May 26, 1994 (Exhibit C15) and to the Department of Transportation and Public Works on May 27, 1994 (Exhibit C14).
On June 6, 1994, the Department of Transportation and Public Works notified the Department and recommended the application be refused and presented three alternatives for the developer. (Exhibit C12)
On July 11, 1994, the Department of Transportation and Public Works notified the Department that the developer is required to provide a concept plan for the entire property. (Exhibit C11)
On August 15, 1994, the Department notified the Department of Transportation and Public Works that a revised plan for the complete property has been submitted. (Exhibit C9) On this same date Brian Dollar, representing the Community of Meadowbank provided comments to the Department. (Exhibit C8)
On September 15, 1994, the Department issued a policy statement regarding approval of subdivisions and building permits within three miles of the proposed cities of Charlottetown and Summerside and the Town of Charlottetown West. The Community of Meadowbank is located within the boundaries of the Town of Charlottetown West. The policy states, inter alia that all subdivision applications requesting approval of more than one residential lot per existing parcel shall be considered to precipitate premature development, require unnecessary expenditure, or place undue pressure on the municipality or the Province to provide services. The policy further requests that these subdivisions are to be denied by the Department under Section 15.(1)(c) or 25.(2) of the Planning Act Regulations. (Exhibit C1)
On October 23, 1994, the Department adopted a policy regarding the implementation of the September 15, 1994 policy. This policy states that any application that had not received preliminary approval before the September 15, 1994 policy would be denied. (Exhibit C5)
On October 24, 1994, the Department notified David MacPhail, by letter that the application to subdivide was denied. (Exhibit C4)
On November 7, 1994, William F. Dow on behalf of David MacPhail appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit B3)
The Commission heard the appeal on January 10, 1995, in Charlottetown.
II. EVIDENCE AND ARGUMENTS
A. Appellant
Legal counsel for the Appellant argues the Department erred in denying the application to subdivide. In appealing this decision, counsel presented three principal arguments, summarized as follows:
1. The application for subdivision approval submitted to the Department on May 25, 1994 complied with the Regulations which existed at that time and therefore the application should have been approved. Subdivision approval would have been granted, but for the policy which was issued by the Minister on September 15, 1994 and the subsequent policy issued on October 23, 1994.
2. Under common law, a landowner is entitled to develop his property unless restricted by legislation. It is the Appellant's contention that the Department has exceeded its jurisdiction by denying the application based on Departmental policy - the policy statement is ultra vires of the Regulations. There are no provisions in the Planning Act which permit Departmental policy to restrict development. Pursuant to the provisions of Section 7 of the Planning Act, the Lieutenant Governor in Council may adopt provincial land use policy, however, in this case the policy to restrict development within the defined areas was not approved by the Lieutenant Governor in Council.
3. The proposed subdivision is not premature - there is a demand for the lots and the Community of Meadowbank supports the subdivision. The decision of the Department to deny the application pursuant to the provisions of Section 25.(2)(c) with respect to the matter of being premature, has no regard to the merits of the Appellant's subdivision application. Counsel for the Appellant states that no other application was caught by the policy and therefore the Department acted in a discriminatory manner by denying the application.
B. Department
The principal arguments for the Department are summarized in a letter to the Appellant from John Pickard, dated October 24, 1994 (Exhibit C4):
The Department states that in accordance with a departmental policy adopted on September 15, 1994, in any area lying within three miles of the Town of Charlottetown West, all subdivision applications requesting approval of more than one residential building lot per existing parcel are considered to precipitate premature development, or require unnecessary expenditure, or place undue pressures on the municipality or the Province to provide services. These applications are therefore to be denied by the department under Section 25.(2)(c) of the Planning Act Regulations. That section states:
No person shall be permitted to subdivide land if, in the opinion of the Minister, the proposed subdivision would precipitate premature development or unnecessary public expenditure, or would place undue pressures on the municipality or the province to provide services."
The Department also argues that as the Appellant did not receive preliminary approval, his application failed to meet the test as set out in the Department policy adopted October 23, 1994.
The Department argues the decision to deny the application to subdivide should be upheld.
C. Public
No person from the public indicated during the hearing that they wanted to make a submission to the Commission either in favor or against the subdivision proposal.
III. DECISION
After considering the evidence the Commission decided to allow the appeal.
In reaching its decision the Commission focused on the following:
1. What was required of the Minister in order to properly decide whether or not the subdivision could be denied under Section 25.(2)(c) of the Planning Act Regulations?
Section 25 of the Regulations requires applicants to show to the satisfaction of the Minister that all land to be subdivided and the subdivision itself is suited for what is intended, having regard to certain criteria. In carrying out his statutory responsibility for approving subdivisions the Minister exercises discretionary powers analogous to a tribunal exercising a judicial discretion.
According to the evidence, the Department used Section 25.(2)(c) in conjunction with the September 15 policy to deny the application.(Exhibit C4)
In the Judicial Review of Administrative Action, 2nd ed., S.A. DeSmith concluded that:
A tribunal entrusted with a discretion must not, by the adoption of a general rule of policy, disable itself from exercising its discretion in individual cases.
And further:
Again, a factor that may properly be taken into account in exercising a discretion may become an unlawful fetter upon discretion if it is elevated to the status of a general rule that results in the pursuit of consistency at the expense of the merits of the individual cases.
The Commission concludes from this that the Minister may validly and properly indicate the kind of considerations by which he will be guided, in the form of policy, as a general rule in the exercise of his discretion. However, the Minister cannot fetter his discretion by treating the policy as binding upon him and exclude other valid or relevant information in the exercise of his discretion.
After reviewing the case law submitted at the hearing, the Commission concludes that even though a pre-existing policy could influence the Minister's opinion he is required in such cases to make an independent inquiry and form an independent opinion based on the circumstances presented by the application. (Re Lloyd and Superintendent of Motor Vehicles)1
After reviewing the evidence, the Commission must conclude that there was no independent inquiry by the Minister to determine whether or not the subdivision proposed by Mr. MacPhail would precipitate premature development or unnecessary public expenditure, or place undue pressures on the municipality or the province to provide services. The Commission finds that even if the policy might apply to the subdivision application and might influence the opinion of the Minister, the policy must not preclude him from exercising his discretion in each case as contemplated under Section 25.(2).
Although the Commission heard some evidence from the Appellant on the issue of prematurity, other than applying the policy there is no evidence to suggest the Minister conducted an appropriate inquiry to determine whether the proposed subdivision would contravene Section 25.(2)(c). Therefore, the Commission finds that the Minister must assess the application on its own merits.
2. Was the Department discriminatory?
In this case, the Commission can find no evidence to support any argument that the Department acted in a discriminatory manner.
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 David MacPhail (the Appellant) against a decision whereby the Department of Provincial Affairs (the Department) denied an application to subdivide nineteen lots from Provincial Property Number 228593 located at Meadowbank, P.E.I.
Order
WHEREAS David MacPhail (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice dated November 7, 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 January 10, 1995, 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 decision of the Minister is quashed and directs the Minister to reconsider the application as the Minister is authorized, on its individual merits and properly exercise his discretion on the application.
DATED at Charlottetown, Prince Edward Island, this 14th day of March, 1995.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
1 British Columbia Court of Appeal, Tysoe, Bull and Taggart, JJ.A. May 11, 1971.