
DOCKET LA94026
ORDER LA95-06
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
Colleen Skerry (the Appellant) against a decision whereby the Department of Provincial
Affairs (the Department) denied an application to subdivide a lot for summer cottage use
from Provincial Property Number 632067 located at Northport, P.E.I.
DATED the 31st day of March, 1995.
Linda Webber, Chairman
Clayton Bulpitt, Commissioner
Myrtle Jenkins-Smith, Commissioner
Order
Appearances & Witnesses
1. For the Appellant
Colleen Skerry the Appellant
Connie Skerry 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 proposals for the
subdivision of land. Pursuant to Section 24(1) of the Planning Act 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 August 4, 1994 Colleen Skerry applied for approval to subdivide a lot for summer
cottage use from Provincial Property Number 632067. The property is located in the
Community of Northport, P.E.I. (Exhibit C3).
By letter dated August 10, 1994, Gerald McMillan notified Colleen Skerry that the
application to subdivide was denied. The Department cited Sections 25 and 37 of the Planning
Act Regulations as reasons for this denial (Exhibit C2).
On August 26, 1994, Colleen Skerry appealed the decision of the Department to The
Island Regulatory and Appeals Commission (Exhibit B1).
The Commission heard the appeal on November 8, 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:
In her letter of appeal Colleen Skerry stated she purchased a lot from her uncle, Merle
Skerry in June 1990. The lot is approximately 23,000 sq. ft. with dimensions of
approximately 110 ft. by 220 ft. Ms. Skerry believes that at the time she purchased the
lot minimum lot size requirements were 15,000 sq. ft. with dimensions of approximately 100
ft. by 150 ft. She contends that at the time of purchase the lot met the minimum lot size
requirements.
Ms. Skerry said that after she purchased the lot the deed was registered with the
Registrar of Deeds. She has incurred cost in the purchase of the property and the payment
of annual property taxes. She realized her uncle was required to submit an application and
receive approval to subdivide the property prior to selling the lot to her. However, "due
to lack of information he failed to do so" (Exhibit B1).
Ms. Skerry is requesting the Commission to overturn the decision of the Department and "take
into consideration the lot size required when the land was purchased in 1990, and allow
for approval to build" (Exhibit B1).
For the Department, Gerald McMillan argues that as Ms. Skerry's application was not
submitted prior to June 12, 1993, the application is subject to the current lot size
requirements, pursuant to Section 37 of the Regulations (Exhibit C1).
In a Memo to Albert MacDonald from Gerry MacDonald, dated August 18, 1994, the
Department outlined several problems with the lot and concluded that "although Ms.
Skerry's lot was deeded in 1990 before the current lot sizes became effective it is
not exempt from the present requirements" of the Planning Act
Regulations - "when the new minimum lot size was adopted it was clearly intended
to apply to any lot requiring subdivision approval except where an application was already
on file on June 12, 1993. This is clearly evident in Section 37.(5) of the
Regulations" (Exhibit C1).
The Department determined, after reviewing Ms. Skerry's application to subdivide,
that the subject lot and a number of previous subdivisions from the parent parcel were
carried out without prior subdivision approval.
In the letter denying the application, Mr. McMillan refers to Sections 25 and 37 of the
Planning Act Regulations as reasons for denial. At the time the Appellant
made her application, these sections read as follows:
Section 25.
(1) Any person wishing to subdivide land shall show to the satisfaction of the Minister
that all land to be subdivided and the subdivision thereof is suited to the purpose for
which the subdivision is intended having regard to
(a) topography and physical conditions of the land;
(b) soil characteristics;
(c) surface drainage;
(d) potential flooding, subsidence and erosion;
(e) location, convenience and safety of access;
(f) availability, adequacy and the economical provision of utilities and services;
(g) existing use of land in the immediate vicinity;
(h) segregation of traffic flow as between main and minor thoroughfares;
(i) the dimension, shape, orientation and accessibility of each lot of land; and
(j) the intended use of the land.
(2) No person shall be permitted to subdivide land if, in the opinion of the Minister,
the proposed subdivision
(a) does not conform to these regulations;
(b) would be detrimental to the convenience, health or safety of occupants in the
vicinity or the general public;
(c) would precipitate premature development or unnecessary public expenditure, or would
place undue pressures on the municipality or the province to provide services; or
(d) would result in undue damage to the natural environment.
Section 37
(1)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 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
Mr. McMillan stated that as the property would be served by on-site water and sewage,
the subject lot would not conform to the minimum lot size requirements and therefore the
application was denied.
In deciding this matter the Commission has reviewed the evidence presented by both
parties and the requirements pursuant to the provisions of the Planning Act
and the Planning Act Regulations.
The evidence before the Commission is that the Appellant is the owner of a lot that was
conveyed to her in 1990. The lot was surveyed and was deeded to the appellant and the deed
was registered pursuant to the Registry Act.
The Commission finds that when the lot was originally conveyed to the Appellant in
1990, the Planning Act Regulations required prior subdivision approval
pursuant to Section 24(1). As Ms. Skerry has stated, Merle Skerry the previous owner of
the property, failed to get such approval.
It is clear from the requirements of Section 24(1) of the Regulations that in order to
subdivide the property, an application must be submitted to the Minister and the applicant
must receive a certificate of approval from the Minister. This was not done.
This failure means that the Appellant cannot now claim any benefit that might have
existed at the time the application should have been made. She is now subject to the
requirements of the law at the time of her application (August 4, 1994), including those
standards pursuant to Section 37 regarding lot size. As stated by the Appellant, the lot
size is 110 ft. wide by 220 ft. in length for 22,000 sq. ft. As this is less than the
minimum lot size requirement of 25,000 sq. ft. as noted above, the application must be
denied.
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 can only
emphasize that if a proper application for subdivision had been submitted to the
Department of Provincial Affairs in the first instancebefore the lot was
conveyedthe Appellant would not find herself in this position. The unfortunate
position the Appellant finds herself in does not justify or provide reason for an
exemption from the law.
For the reasons stated, the appeal is hereby 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
Colleen Skerry (the Appellant) against a decision whereby the Department of Provincial
Affairs (the Department) denied an application to subdivide a lot for summer cottage use
from Provincial Property Number 632067 located at Northport, P.E.I.
Order
WHEREAS
Colleen Skerry (the Appellant) appealed to The Island Regulatory and
Appeals Commission (the Commission), in written notice received on August 26, 1994,
against a decision of the Department of Provincial Affairs;
AND WHEREAS the Commission heard the appeal at a public hearing conducted at
Charlottetown on November 8, 1994, after due public notice;
AND WHEREAS the Commission has made a decision in accordance with the stated
reasons;
NOW THEREFORE,
IT IS ORDERED THAT the appeal is hereby denied.
DATED at Charlottetown, Prince Edward Island, this 31st day of March, 1995.
BY THE COMMISSION:
Linda Webber, Chairman
Clayton Bulpitt, Commissioner
|