DOCKET LA94030
ORDER LA95-03IN 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 Ruth (Morrison) Murl (the Appellant) against a decision whereby the Department of Provincial Affairs (the Department) denied an application to subdivide a lot from Provincial Property Number 410522 located at Milburn, P.E.I.
DATED the 16th day of March, 1995.
John L. Blakney, Vice-Chairman
Debbie MacLellan, Commissioner
Anne McPhee, Commissioner
Order
Appearances & Witnesses
1. For the AppellantPercy Murl in support of the Appellant
Doreen Wall in support of the Appellant
2. For the Department
Gerald McMillan Property Development Officer
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 applications 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 February 9, 1994, Ruth Morrison applied for approval to subdivide (Provincial Property Number 410522) into two lots. According to the information contained in the application, the existing use of the property is agricultural and the proposed use of the severed lot is for a single family dwelling. The property is located in the community of Milburn. (Exhibit C6)
On August 29, 1994, the Department notified Ruth Morrison, by letter that the application to subdivide was denied. (Exhibit C1)
On September 19, 1994, Doreen Wall (on behalf of Ruth Murl) appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit B1)
The Commission heard the appeal on November 17, 1994, in Charlottetown.
II. DECISION
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 Department stated that based on the existence of a high water table the subject lot is categorized as a Category III lot, pursuant to the provisions of Section 36.(c) of the Planning Act Regulations. The Department argued that where lots are served by on-site water supplies and sewage disposal systems, pursuant to Section 37.(1) of the Planning Act Regulations, the development of a Category III lot shall not be permitted unless it is upgraded to a Category II lot satisfactory to the Minister.
Pursuant to Section 36.(c) of the Planning Act Regulations a Category III lot:
means a lot that has a depth of permeable natural soil less than 1 foot and in which the total depth to bedrock or the depth to the maximum water table elevation is less than 4 feet.
And Section 37 states:
No person shall create any lot that does not meet the minimum requirements set out in Tables 1, 2 and 3.
TABLE 1
Minimum lot sizes for lots served by on-site water supplies and sewage disposal systems
Category I lot 25,000 sq.ft. 150 ft. wide Category II lot 35,000 sq.ft. 200 ft. Wide A Category III lot shall not be permitted unless it is upgraded to a Category II lot satisfactory to the Minister.
The Department's site inspections that involved a test pit analysis have concluded the lot has a high water table and as a result is not suitable for development. On August 22, 1994 when Mr. McMillan inspected the site he found the "water level 2'8" below the surface". (Exhibit C7)
The Commission recognizes that the Appellant has spent considerable effort and money to try and upgrade the lot from a Category III lot to a Category II lot. However, it is the Commission's understanding from the evidence that the site has been inspected by the Department after being upgraded and it still fails to meet the required standard. The Commission is not convinced that the upgrade which involved the addition of a substantial amount of fill has satisfactorily upgraded the lot.
In addition, the Commission finds that the size and dimensions of the lot 25,500 sq.ft. (150' X 170') fail to meet the minimum size and width requirements of 35,000 square feet and 200 ft. wide for a Category II lot as set out under Section 37. Consequently, even if the lot could be upgraded to permit the installation of an on site sewage disposal system the lot could not be approved because it fails the lot size and frontage requirements under Section 37.
After considering all the evidence presented and after reviewing the provisions of the Planning Act and Planning Act Regulations, the Commission is of the opinion that the Department reached the correct decision—denying approval of the subdivision.
The Commission does sympathize with the Appellant and the circumstances in which she finds herself, especially after spending a considerable amount of money to acquire and improve the lot. However, it is clear to the Commission that the lot should not have been created in the first instance and according to the evidence was never approved in accordance with the Planning Act Regulations. The Commission must emphasize that one purpose for the Regulations is to prevent lots of these characteristics from being created in the first place. The Commission can only emphasize that if a proper application for subdivision had been submitted to the Department of Provincial Affairs in the first instance—before the lot was conveyed—the Appellant would not find herself in this position. The unfortunate circumstance the Appellant finds herself in is not reason enough for the Commission to overturn the decision of the Minister and allow the appeal.
Based on the evidence presented the Commission finds that the characteristics of this particular site - limited soil permeability and high seasonal water table - indicate that the lot is not suitable for development pursuant to the provisions of Sections of 15, 19 and 25 of the Regulations. The Commission also finds that the lot fails to meet the minimum size and dimensions required under the Regulations.
For these reasons 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, under Section 28 of the Planning Act, by Ruth (Morrison) Murl (the Appellant) against a decision whereby the Department of Provincial Affairs (the Department) denied an application to subdivide a lot from Provincial Property Number 410522 located at Milburn, P.E.I.
Order
WHEREAS Ruth (Morrison) Murl (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice received September 19, 1994, against a decision of the Department;
AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on November 17, 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 denied.
DATED at Charlottetown, Prince Edward Island, this 16th day of March, 1995.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
Debbie MacLellan, Commissioner
