
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 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 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