DOCKET LA94026
ORDER LA95-06IN 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 Appellant2. 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 instance—before the lot was conveyed—the 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