Docket LA94034
Order LA95-08

IN THE MATTER of an appeal by Annie Larivee against a decision of the Department of Provincial Affairs, dated October 4, 1994.

BEFORE THE COMMISSION

on Friday, the 31st day of March , 1995.

John L. Blakney, Vice-Chair
Clayton Bulpitt, Commissioner
Anne McPhee, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion & Findings

3. Disposition

Order

Appearances & Witnesses

1. For the Appellant

Annie Larivee the Appellant

2. For the Department

Garth Carragher Property Development Officer

3. For the Island Regulatory and Appeals Commission

Staff:
Chris Jones Director, Land and Property Division
Beth McInnis Recording Secretary

Reasons for Order

1. Introduction

This is an appeal under Section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, by Annie Larivee (the Appellant). The Appellant is appealing a decision whereby the Department of Provincial Affairs (the Department) denied issuance of a building permit for the construction of a single family dwelling on parcel number 544106 at Suffolk.

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 September 22, 1994, Annie Larivee completed a form letter requesting the Department of Community and Cultural Affairs to evaluate property number 544106 to determine if the construction of a single family dwelling can be approved. (Exhibit D6)

On September 23, 1994 the Department notified Ms. Larivee, by letter, that approval for development could not be granted for this lot. The Department stated that there is no safe stopping distance along the frontage of the lot. (Exhibit D7)

On October 4, 1994, Ms. Larivee appealed the decision of the Department to The Island Regulatory and Appeals Commission. (Exhibit A1)

The Commission heard the appeal on March 9, 1995, in Charlottetown.

2. Discussion & Findings

The Appellant stated that according to her observation of the subject property, the sight distance is adequate. Although she does not dispute the measurements taken by the Department, the Appellant submits that the traffic on this road is minimal and there have never been problems with safety. The Appellant believes the Regulations should be varied to accommodate this development.

In addition to these arguments, the Appellant raised an issue regarding the role of the Commission in appeal proceedings and submitted that the purpose for the Commission is to overturn decisions of the Minister in special cases.

In reviewing the application, the Department determined that the access to the property would not comply with the minimum sight distance standards. The Department denied the application on the basis of Section 15.(2) of the Planning Act Regulations.

During the hearing Mr. Carragher stated that the Department could not waive the requirements of the Regulations and apply a variance to the minimum sight distance standards.

The Department submitted as evidence a profile of the property which supports their conclusion. (Exhibit D1)

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 this decision are as follows:

During the hearing the Appellant raised the question regarding the powers of the Island Regulatory and Appeals Commission and whether the Commission could overturn the decision of the Minister despite the regulation or the law.

This matter was canvassed before the Commission in the appeal of Lorne Perry v. The Department of Community and Cultural Affairs (Order LA93-13).

The Commission, as an appellate body only has the same decision making power as the tribunal at first instance i.e. the Minister, within the regulations that existed at the time of an application. The Commission does not have absolute powers and is bound by the law.

On any appeal, and in this case, the Commission has the power to hear the evidence and arguments as presented by both parties and decide whether to allow the appeal or dismiss it based on the evidence and arguments presented and within the applicable regulations.

As to the more substantive matters of this case, the evidence indicates that at no point along the frontage of the property is there adequate sight distance, pursuant to the requirements as set out under Section 15.(2) and Schedule C of the Planning Act Regulations. It is the Department's evidence that the range of sight distance along the front of the lot is 95 meters to point 2 and 120 meters to point 1 as indicated on the profile. (Exhibit D1).

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, Local Highways and Unpaved Roads. It is the Department's evidence that the subject road is classified under Schedule C. 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:

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) - desired

The Department concluded, based on the tests carried out, that a permit to construct a single family dwelling on the property must be denied because the entrance way would have unsafe sight distance.

Based on the profile presented by the Department and the fact the Appellant does not contest the measurements, the Commission finds that there is no point along the road frontage of the lot where an entrance way would be safe in accordance with the minimum sight distance requirements as set out by the Regulations.

Even though the adjacent landowner has given consent to remove some of the trees on the curve, there is no evidence before the Commission that the sight distance would meet the standards as a result of their removal.

Although the Appellant has presented arguments that it is her belief that the entrance would be safe, the Commission accepts the evidence of the Department that the location of an access driveway on the property would establish an unsafe sight distance for on-coming traffic.

The Commission believes that pursuant to Section 15.(2) of the Regulations the enforcement of the minimum sight distance requirements is imperative. There are no statutory or legislative provisions that give the Commission the authority to vary any regulation as this would be tantamount to the Commission making its own law which clearly it cannot do.

3. Disposition

For the reasons stated, the appeal is denied.

IN THE MATTER of an appeal by Annie Larivee against a decision of the Department of Provincial Affairs, dated October 4, 1994.

Order

WHEREAS Annie Larivee (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice dated October 4, 1994, against a decision of the Department of Provincial Affairs;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on March 9, 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 Act

IT IS ORDERED THAT

1. The appeal is hereby dismissed.

DATED at Charlottetown, Prince Edward Island, this 31st day of March, 1995.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

Anne McPhee, Commissioner

Clayton Bulpitt, 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.