Docket LA94031
Order LA95-05IN THE MATTER of an appeal by Lorne Clow against a decision of the Southport Community Council, dated September 26, 1994.
BEFORE THE COMMISSION
on Thursday, the 30th day of March, 1995.
Linda Webber, Chair
John L. Blakney, Vice-Chair
Emmett Kelly, Commissioner
Order
Contents
Appearances & WitnessesReasons for Order
1. Introduction
2. Discussion & Findings
3. Disposition
Order
Appearances & Witnesses
1. For the AppellantLorne Clow The Appellant
Catherine Parkman Legal Counsel for the Appellant2. For the Community of Southport
Carol Lowther Administrator
Phil Wood Planning Consultant
Reasons for Order
1. Introduction
This is an appeal under the Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, by Lorne Clow (the Appellant). The Appellant is appealing a decision by the Southport Community Council (the Council) to deny approval to subdivide a lot from Parcel Number 328781 at Southport.
In accordance with the Planning Act, the Community of Southport Official Plan 1990 and the Southport Zoning and Subdivision Bylaws, the Southport Community Council has the authority to approve the subdivision of land, pursuant to Section 56.(a) of Part VII - General Provisions for Subdivision:
Section 56.
No person shall subdivide land within the boundaries of the Community of Southport unless the subdivision:
a) has approval from the Council;
The Appellant Lorne Clow seeks the approval of subdivision of land in Southport.
The land in question is part of approximately 2 acres owned by the Appellant's mother in Southport. The lot sought at this time would be in the shape of a panhandle and would be located at the end of Quiet Water Drive, accessed by a 24 foot private right of way. Sewer service would be through the central sewage system accessed by way of Stratford Road. Water would be supplied by an on-site well.
The plan put forward by the Appellant is described in a letter to the Community dated August 12, 1994 (Exhibit S1) as allowing for "a private road approximately 20 feet in width by 100 feet in length for access to the second lot".
A letter of application for the permit was sent to the Community by the Appellant on September 8, 1994.
The Appellant knew at the time he made his application that the Bylaws of the Community of Southport did not allow a building permit to be issued where a lot fronted on a private right of way. However, he was told by the representatives of the Community that a bylaw amendment was being sought that would allow the permit to be issued.
The bylaw amendment in question received first reading on July 26, 1994, second reading on August 8, 1994 and was approved and signed by the Minister of Provincial Affairs and Attorney General on September 15, 1994.
Section 7 of the Amendment states as follows:
Add, following Section 10.1:
10.2 Notwithstanding Section 10.1 above, Council may approve a Development Permit for a residential or commercial structure which fronts on a private right-of-way provided that the following criteria are met:
a) no reasonable provision can be made to provide access to a public street;
b) safe ingress and egress from the lot can be provided;
c) an agreement is registered in the P.E.I. Registry Office, binding on all land owners abutting or fronting on the private right-of-way providing for the long-term ownership and maintenance of the right-of-way, such agreement shall be binding on all heirs, successors and assigns of the current property owners.
The Appellant states he met with Provincial Affairs Minister Alan Buchanan and Kingsley Lewis about his building permit and was told by them that once the amendment was passed he shouldn't have any problem getting his building permit.
Phil Wood, planning advisor to the Community reviewed the lot in question and stated that the Community agreed with Mr. Clow that his circumstances - the land in question - were unique and required special consideration in design for development. The bylaw amendment was not created solely for the Appellant but the Appellant's circumstances were of the type the bylaw was intended to address.
However, the Community was concerned about issuing the building permit to the Appellant after the Commission rendered its decision in the case of George Gaudet v. The Community of Southport (Order LA94-10, July 18, 1994). That decision dealt with Section 8 (1.1) of the Planning Act:
Where a Municipality has an official plan and bylaws, the provisions of the official plan and bylaws shall not be less stringent than the regulations made under the Act on the same subject.
In this case the frontage allowed by the Community bylaws is less stringent than that required by the Planning Act.
Mr. Wood described his and others' efforts to have the Province change this rule, even filing a report entitled "An Analysis of the Planning Act Regulations and Their Impact on Community Planning in Prince Edward Island", prepared for the Federation of Prince Edward Island Municipalities by P. Wood & Associates, October, 1994.
Mr. Wood related how the Community had drafted its proposed bylaw amendment prior to the Commission rendering its decision in the Gaudet case. As a result of that decision he met with the Minister and specifically raised their concerns about the validity of the bylaw amendment in the face of the less stringent clause. The Community assumed that the signing of the bylaw amendment by the Minister - in spite of its containing provisions less stringent than the Planning Act - meant that "everything was okay". They thought his signature "made it all legal".
However, the Community's legal counsel advised them that the Minister's signature did not make valid the provisions of the bylaw and as a result the Community, by letter dated September 26, 1994, turned down the subdivision application.
An appeal of this decision was filed with the Commission on September 29, 1994. A hearing was held on February 2, 1995.
2. Discussion & Findings
The position of the Community is stated by both Mr. Wood and Carol Lowther, Administrator for the Community, that they would like to issue the subdivision approval even though the Community bylaw is less stringent than the Planning Act's rules in this area. They would like the Commission to rule that the less stringent rule does not apply because the Minister approved the specific bylaw amendment in question.
The Appellant's solicitor argued that the Community should not have followed the advice of its solicitor but should have relied upon the Minister's assurance that there is no problem here.
The issue here appears to be solely the significance of the Bylaw Amendment approved by the Minister on September 15, 1994 - i.e., does that approval override the provisions of the Planning Act that would invalidate the contents of at least part of that bylaw?
The case of Regina v. Jeffs, [1959] O.R. 150 (Ont. H.C.) dealt with a municipal traffic bylaw and how it impacted on the provincial Highway Traffic Act. Many citations in that case are relevant:
at p. 153:
In White v. Morley, [1899] 2 Q.B.34, at p. 39, Campbell, J., said:
A bylaw is a local law, and may be supplementary to the general law; it is not bad because it deals with something that is not dealt with by the general law: But it must not alter the general law by making that lawful which the general law makes unlawful; or that unlawful which the general law makes lawful.
In Thomas v. Sutters, [1900] 1 Ch. 10, (C.A.), Sir F.H. Jeune, at p. 16, said: -
If a bylaw provided that something should be legal which the public law had declared to be illegal or vice-versa, it might well be said that the by-law could not set itself up against an Act of Parliament.
Spence, J. goes on to state that there must be limitations upon the power of self government and among these limitations is that:
... where the provincial legislature has itself undertaken to deal with a certain subject matter in the interest of the inhabitants of the Province, all legislation by the municipality must be subject to the provincial enactment." (p. 154)
Specifically on the issue of whether or not an otherwise invalid bylaw can be made valid by its being signed by someone in authority, Spence, J. states, at p. 155:
I think authority need not be quoted for the well recognized proposition that if a by-law is otherwise invalid, then no approval by a person who, under the provisions of the statute is required to give that approval before a valid by-law may be effective, gives an invalid by-law validity.
In Craies, Statute Law, 5th ed., 299, it is said: -
It has long been settled that the approval of a bylaw by the authorities mentioned in the statute under which it is made does not give it validity, if it is in other respects not in accordance with statutory power.
That passage from Craies on Statutes continues on to state:
When the prescribed mode has been followed the by-laws are duly made so far as form is concerned; but it does not follow that their contents are authorized by the statute.
All these statements from the law make it clear that while the Minister's signature of approval on the Bylaw Amendment may have validated the document insofar as its form was concerned, that signature did nothing to validate its contents. This means that the less stringent rule was not overridden by that signature.
As stated previously, Section 8.(1.1) of the Planning Act states that the requirements of the official plan and bylaws cannot be less stringent than the requirements or standards set out under the regulations.
In this particular case the Community's planner stated his belief that the provision of the Bylaw Amendment that the Applicant is relying upon is less stringent than the Planning Act rules on the same subject.
The standards as set out under Section 38 Planning Act Regulations are:
Section 38
The Minister may approve the subdivision of a lot which does not have frontage on a public road, if
a) the distance of the lot from any existing public road is in excess of one hundred and fifty feet;
b) access to a public road is by way of a legally defined access driveway at least twenty-four feet in width and used solely for the purpose of ingress and egress to the lot;
c) the lot size conforms to the requirements of these regulations; and
d) the lot is not adjacent to a lot that does not have frontage on a public road. (EC601/77)
The standards as set out in Section 10.2 of the Bylaw are:
Section 10.2
Notwithstanding Section 10.1 above, Council may approve a development permit for a residential or commercial structure which fronts on a private right-of-way, provided that the following criteria are met:
a) no reasonable provision can be made to provide access to a public street;
b) safe ingress and egress from the lot can be provided;
c) an agreement is registered in the P.E.I. Registry Office, binding on all land owners abutting or fronting on the private right-of-way providing for the long term, ownership and maintenance of the right-of-way, such agreement shall be binding on all heirs, successors and assigns of the current property owners.
It is the view of the Commission that the standards as set out in the bylaw are less stringent than the standards as set out by the Regulation and are therefore invalid.
3. Disposition
As a result the appeal is dismissed. The decision of the Community of Southport is affirmed.
IN THE MATTER
of an appeal by Lorne Clow against a decision of the Southport Community Council, dated September 26, 1994.Order
WHEREAS
Lorne Clow (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice received on September 29, 1994, against a decision of the Southport Community Council; AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on February 2, 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 ActIT IS ORDERED THAT
1. The appeal is hereby dismissed.
DATED
at Charlottetown, Prince Edward Island, this 30th day of March, 1995.BY THE COMMISSION:
Linda Webber, Chair
John L. Blakney, Vice-Chair
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.