
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.
|