DOCKET LA94029
ORDER LA95-07 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 Stanley Gallant (the Appellant) against a decision whereby the Department of Provincial Affairs (the Department) denied permission to construct a clothing store on Provincial Property Number 473298 located at Woodstock, P.E.I.
DATED the 31st day of March, 1995.
John L. Blakney, Vice-Chairman
Clayton Bulpitt, Commissioner
James Nicholson, Commissioner
Order
Appearances & Witnesses
1. For the Appellant
Stanley Gallant The Appellant
Allan Shaw Legal Counsel for 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 or deny the issuance of building permits.
On August 12, 1994, Stanley Gallant made application for a building permit to construct a used clothing store on (Provincial Property Number 473298) at Woodstock. (Exhibit C5)
On August 29, 1994 the Department notified Mr. Gallant by letter that the application was denied. The Department stated that the driveway located where the building is to be situated does not comply with the minimum sight distance requirements. (Exhibit C4)
On September 13, 1994, (date received by the Commission) Mr. Gallant appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit B1)
The Commission heard the appeal on November 29, 1994, in Charlottetown.
The Commission received a further submission from the Department on December 15, 1994 and a response from Allan Shaw on January 2, 1995.
II. EVIDENCE AND ARGUMENTS
A. Appellant
The principal arguments for the Appellant can be summarized as follows:
The Appellant stated that he has two properties, which are identified as lots #9 and #10 on Exhibit C10. The lots were created in 1973 with the approval of the St. Anthony's Parish subdivision.
Mr. Gallant has a house on lot #9 and the access to this lot meets the sight distance requirements as prescribed by the Regulations. He has applied for a building permit to construct a used clothing store on lot #10. Although the sight distance standards on Lot #10 may not meet the requirements, the Appellant contends that a subdivision approval was granted and the lot was legally created, therefore, a building permit should be issued.
B. Department
The arguments for the Department may be summarized as follows:
In reviewing the application, the Department determined that the driveway located where the building is to be situated on lot #10 does not comply with the minimum sight distance standards for collector highways. The Department denied the application on the basis of Section 15 of the Planning Act Regulations.
In a submission to the Commission dated December 9, 1994, the Department confirmed that lots #9 and #10 were approved as separate lots on July 21, 1971 as part of plan #1932B, and are still considered to be separate. The Department of Transportation and Public Works completed a profile of the lots and concluded that there was no safe location for access except where the driveway is located on lot #9.
III. DECISION
Having considered the evidence, the Commission decided 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 Lot #10 (provincial property number 473298) 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 created by the Department of Transportation and Public Works indicates that from the western property line of lot #9 to the eastern property line of lot #10 there is no safe location for access, except for the first 16 meters of lot #9.
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 collector highways. It is the Department's evidence that the Howlan Road (Route #143) is designated as a collector highway under the Planning Act Regulations and therefore classified under Schedule C as a collector. 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)
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.
462 feet (140 meters) - minimum
495 feet (150 meters) - desirable
The Department concluded, based on the tests carried out, that a permit to build a used clothing store on the lot must be denied because the entrance way to lot #10 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 lot #10 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 Commission is convinced, based on the evidence, that the location of an access driveway on lot #10 would establish an unsafe sight distance for on-coming traffic. The Commission believes that safety of the travelling public is of paramount concern in such a case.
As to the Appellant's argument that because the subdivision of the lot was previously approved, a building permit should be granted; the Commission believes that pursuant to Section 15 of the Regulations the enforcement of the minimum sight distance requirements are imperative. Therefore a building permit cannot be issued.
For the reasons stated, the appeal is 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 Stanley Gallant (the Appellant) against a decision whereby the Department of Provincial Affairs (the Department) denied permission to construct a clothing store on Provincial Property Number 473298 located at Woodstock, P.E.I.
Order
WHEREAS Stanley Gallant (the Appellant) appealed to The Island Regulatory and Appeals Commission (the Commission), in written notice received September 13, 1994, against a decision of the Department of Provincial Affairs (the Department);
AND WHEREAS the Commission heard the appeal at a public hearing conducted at Charlottetown on November 29, 1994, after due public notice;
AND WHEREAS the Commission has made a decision in accordance with the stated reasons;
NOW THEREFORE, pursuant to the Planning Act;
IT IS ORDERED THAT the appeal is hereby denied.
DATED at Charlottetown, Prince Edward Island, this 31st day of March, 1995.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Clayton Bulpitt, Commissioner
James Nicholson, Commissioner
