Docket LA94035
Order LA95-04

IN THE MATTER of an appeal by Robert Gordon against a decision of the Department of Provincial Affairs, dated October 7, 1994.

BEFORE THE COMMISSION

on Thursday, the 30th day of March, 1995.

John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
Emmett Kelly, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion & Findings

3. Disposition

Order

Appearances & Witnesses

1. For The Appellant

Robert Gordon The Appellant

2. For The Department

Gerald McMillan Property Development Officer
Mike Berrigan Transportation Engineer

3. For the Island Regulatory and Appeals Commission

Staff:
Chris Jones Director, Land and Property Division
Beth McInnis Recording Secretary

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, by Robert Gordon (the Appellant). The Appellant is appealing a decision whereby the Department of Provincial Affairs (the Department) denied issuance of a building permit for the construction of a horse barn on parcel number 15867 at Alma.

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.

On August 25, 1994, Robert Gordon made application for a building permit to construct a horse barn on (Provincial Property Number 15867) at Alma. (Exhibit C5)

On October 7, 1994 the Department notified Mr. Gordon, by letter that the application was denied. The Department stated that there is no safe stopping distance along the frontage of parcel #15867. (Exhibit C1)

On October 28, 1994, Mr. Gordon appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit B1)

The Commission heard the appeal on January 12, 1995, in Charlottetown.

2. Discussion & Findings

The Appellant stated to the Commission that he currently owns race horses which are housed in a barn on one side of the road and on the other side of the road is a training track. The property is divided by Route #2 and the horses are required to cross the highway to access the training track. The Appellant contends this is an unsafe situation as there is potential for accidents with oncoming traffic.

The Appellant applied to construct a horse barn on the same land as the track is located so it can be accessed without the need to cross the highway. The construction of the horse barn will eliminate potential safety problems.

For these reasons, the Appellant argues that a building permit should be granted.

In reviewing the application, the Department determined that the access to the building would not comply with the minimum sight distance standards for arterial highways . The Department denied the application on the basis of Section 15 of the Planning Act Regulations.

The Department submitted as evidence a profile of the property prepared by the Department of Transportation and Public Works which supports their conclusion.

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 this decision are as follows:

The evidence before the Commission is that at no point along the frontage of the property is there adequate sight distance, pursuant to the standards as set out under Section 50 and Schedule C of the Planning Act Regulations. The profile submitted by the Department of Transportation and Public Works indicates that the range of sight distance is 142-145 meters traveling in the direction from Alma to Tignish and 138-168 meters traveling in the direction from Tignish to Alma.

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 Arterial Highways. It is the Department's evidence that Route #2 is designated as an Arterial Highway under the Planning Act Regulations and therefore classified under Schedule C as an arterial. 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)

ARTERIAL HIGHWAYS

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.

561 feet (170 meters) - minimum

693 feet (210 meters) - desirable

The Department concluded, based on the tests carried out, that a permit to construct a horse barn on the property must be denied because the entrance way would have unsafe sight distance.

Based on the evidence of the Department, the Commission concludes that there is no point along the road frontage of the property where an entrance way would be safe in accordance with the minimum sight distance requirements of the Regulations. The profile presented by the Department of Transportation and Public Works supports this finding and the Appellant did not contest these measurements.

The Appellant has presented reasonable arguments that the current situation of having the horses cross the road to access the race track is an unsafe situation and that the location of the barn on the site would improve the safety situation. However, the Commission is convinced, based on sight distance measurements, that an entrance way would have unsafe sight distance and pose a hazard to approaching traffic. In the Commission's view neither situation is or would be safe and therefore pursuant to the provisions of Section 15.(1)(b) the appeal cannot be allowed.

The Commission believes that pursuant to Section 15 and Schedule C of the Regulations the enforcement of the minimum sight distance standards is imperative and therefore no building permit can be issued.

3. Disposition

For the reasons stated, the appeal is denied.

IN THE MATTER of an appeal by Robert Gordon against a decision of the Department of Provincial Affairs, dated October 7, 1994.

Order

WHEREAS Robert Gordon (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice received by the Commission on October 28, 1994, against a decision of the Department of Provincial Affairs;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on January 12, 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 dismissed.

DATED at Charlottetown, Prince Edward Island, this 30th day of March, 1995.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Anne McPhee, Commissioner

Emmett Kelly, 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.