Docket LA96025
Order LA96-13IN THE MATTER of an appeal by Julie E. Ireson against a decision by the Minister of Provincial Affairs and Attorney General, dated August 27, 1996.
BEFORE THE COMMISSION
on Thursday, the 14th day of November, 1996.
Linda Webber, Chair
Anne McPhee, Commissioner
Emmett Kelly, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Reasons for Decision
4. Disposition
Order
Appearances & Witnesses
1. For The AppellantWitness:
Julie E. Ireson
2. For the Minister of Provincial Affairs and Attorney General
Witness:
Garth Carragher3. For the Developer
Counsel:
Kevin J. KileyWitness:
Melvin McQuillan
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 Julie E. Ireson (the Appellant) against a decision by the Minister of Provincial Affairs and Attorney General (the Minister) to issue a building permit to Melvin McQuillan (the Developer) to erect a potato storage warehouse on Provincial Property Number 219626 located on the east side of Peters Road in the Community of Elmwood.
In accordance with the Planning Act and the Planning Act Regulations, the Minister of Provincial Affairs and Attorney General has the authority to approve building permits pursuant to Section 12 of the Regulations.
On August 27, 1996 Melvin McQuillan made application to the Minister for a building permit to erect a potato storage warehouse (Exhibit D2).
A site development inspection report was completed by Garth Carragher on August 26, 1996 (Exhibit D1) and a building permit was issued to the Developer on August 27, 1996 (Exhibit D3).
On August 29, 1996 Julie E. Ireson submitted a Notice of Appeal (Exhibit A1) to the Island Regulatory and Appeals Commission (the Commission).
The Commission heard the appeal on September 26, 1996 at a public hearing.
2. Discussion
The principle arguments for the Appellant may be summarized as follows:
The Appellant contends that the location of a potato warehouse directly across the road from her residence will have a negative impact resulting in a loss of her family's enjoyment of their property. In the Notice of Appeal and the statements presented during the hearing, the Appellant presents a number of concerns pertaining to the proposed development:
- …there will be continuous noise from both the fans inside the building and heavy traffic entering and leaving the warehouse throughout the day and night;
… they will be subjected to dust pollution blowing from the property; … the constant noise and traffic will affect the safety and sleep of her children; …the location of the warehouse will affect the market value of her property; …the location of the warehouse will block their view of the fields and will block the morning sunlight. The Appellant submits that Mr. McQuillan's commercial farm operation should be consolidated and the proposed warehouse located adjacent to existing buildings and not directly across the road from her residence.
The Appellant states that Mr. George Miller who lives across the road from Mr. McQuillan's existing warehouse has experienced problems associated with blowing dust and noise.
The Appellant's position is that she is not against Mr. McQuillan building a potato warehouse but does not want it built in the proposed location.
The principle arguments for the Developer may be summarized as follows:
The Developer's position is that this is a predominantly agricultural community and the erection of a potato warehouse is a permitted use.
The Developer submits that the warehouse will only be used to store potatoes. This will require trucks to transport potatoes to the warehouse from the fields during the harvest period and then transport the potatoes to the grading facility during the winter. The Developer expects that it should take approximately ten days to store the potatoes in the building and approximately the same number of days to remove the potatoes and transport them to the grading facility.
The Developer states that the warehouse location was decided upon for economic reasons. The Developer contends that any potential negative impacts associated with the building will be minimized by the location of the warehouse on the east side of the Peters Road, the distance the building is set back from the road, and the placement of vents over the fans. In addition, trucks transporting potatoes to the warehouse will be required to move at reduced speeds in front of the Appellant's home therefore creating a much safer situation than which presently exists.
The Developer argues that the building complies with all requirements under the Planning Act and the Regulations and the appeal should therefore be dismissed.
On behalf of the Minister, Garth Carragher submits that the application for a building permit to erect a potato storage warehouse on the subject property complies with all the requirements pursuant to the provisions of the Planning Act Regulations.
Mr. Carragher states that this is predominantly a farming community and the proposed warehouse is an acceptable form of development for this area. Mr. Carragher says that he visually inspected the site and determined that the proposed warehouse met the required set back provisions and all other requirements of the Regulations.
Mr. Carragher submits that since the warehouse complied with the necessary statutory requirements there was no reason to deny the application for a building permit.
3. Reasons for Decision
After giving 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.
The local community has been characterized by all parties as an area of mixed land uses. The Commission heard evidence from the Appellant that there are approximately 16 to 18 homes within one kilometer near the Appellant, in addition to a number of farming operations. The Appellant describes the area as residential, while both the Developer and the representative for the Minister describe the area as being a traditional agricultural community.
According to the application for a building permit, as submitted by the Developer on August 27, 1996, the proposed use of the building is for a potato storage warehouse. It appears from the Appellant's submission that she is not against the Developer building the potato warehouse, however she believes the Developer's farm operation should be consolidated and the proposed development located adjacent to the Developer's existing buildings and not directly across the road from her residence.
The Appellant's position is that the proposed potato warehouse will have a negative impact on the value of her property. In addition, she states that her view will be destroyed and there will be increased truck traffic, noise and dust as a result of the proposed warehouse. Although the Appellant did not refer to a specific section of the Regulations, the Commission believes that the Appellant relies, in part, on Section 15.(1) of the Regulations as the basis for her arguments.
Section 15.(1)
No building permit shall be issued where, in the opinion of the Minister, the proposed building or structure, or its alteration, repair, location or use or change of use
...
(b) would be detrimental to the convenience, health or safety of occupants or residents in the vicinity or the general public;
...
(e) would have a detrimental impact on surrounding land uses; or
…
The evidence generally suggests that while this section was not specifically considered by the Minister or his representatives, they are aware of its provisions and if they perceive a development to raise concerns of this type they pursue further investigations. This seems reasonable to the Commission. In the particular circumstances of this case, the witness for the Minister stated that a potato warehouse in an agricultural community would not normally raise (s. 15) concerns and there was nothing about this particular development that raised any special concerns.
The evidence of Mr. Carragher was that with the development of a potato warehouse, the Department is usually concerned with tractor trailer traffic turning on the road and the potential hazards this may create. In order to deal with this problem, Section 21 of the Regulations has been amended to now require buildings to be set back 150 feet from the center line of the road. The previous requirement was approximately 83 feet. In this case, the proposed building exceeds this requirement and is set back approximately 180 feet from the center line of the road. In addition to exceeding the set back requirements the proposed development also complies with the sight distance standards for traffic accessing the road. It is Mr. Carragher's opinion that the location of the building does not pose any safety concerns.
Generally, Section 15 calls upon the discretion of the Minister. To allow the appeal based on these arguments would require the Commission to substitute the Minister's opinion with its own. As determined in previous appeals, for the Commission to overturn the decision of the Minister it must find that the Minister's opinion is unreasonable or based on the wrong factors.1 There is no evidence of this type to support intervention by the Commission in this case.
The arguments raised by the Appellant pertaining to the impact on property values, truck traffic, dust and noise were not supported by the evidence. The attempts by the Appellant to raise a parallel between her own property and that of the Miller's, across from which a potato warehouse and grading facility is presently located, fail because of the different factors involved: different side of the road from prevailing winds, different grading, and a different use of the building for storage only, as opposed to a combined grading and storage facility.
As to the Appellant's argument that their view of the fields and sunshine entering their home will be obstructed by the warehouse, the Commission cannot find where the Regulations indicate that preserving a view is an objective except in areas where specific regulations have been adopted such as Section 2.8 of the Regulations that apply to the Princetown Point - Stanley Bridge Area. To the Commission's knowledge no part of this Community, or more specifically this lot, has been established as a scenic view zone under the regulations. Therefore the Commission cannot allow the appeal on this issue.
As determined by the Commission in similar appeals involving development in rural areas, the situation in which the Appellant now finds herself and her concerns that the proposed development will impact on her property are not unique. The Community in which the Appellant resides and in which the Developer operates a potato farm falls under the jurisdiction of the Minister of Provincial Affairs and Attorney General in terms of land use regulations. Under the Planning Act and Planning Act Regulations the Minister is responsible for decisions on the approval or denial of subdivision applications or building permits.
Unlike residents of a planned community which has bylaws and zoning regulations and sets forth the land uses in advance and assures owners of property that new development within a particular zone will be like or similar to their development, the residents of this community do not have such a level of protection. Residents outside areas of municipal jurisdiction like the residents of this community fall under the jurisdiction of the Planning Act and Planning Act Regulations which allow a mix of land uses provided that the requirements prescribed by the Regulations are satisfied.
In the Commission's view the Department could, if it chose, exercise a greater role in the location of buildings representing incompatible uses within an area, but it has not chosen to do so in this case. The Commission believes that this type of decision is within the discretion of the Department.
In this case the Commission finds that the Regulations have been satisfied and therefore affirms the decision of the Minister to issue a building permit.
4. Disposition
The appeal is dismissed.
IN THE MATTER of an appeal by Julie E. Ireson against a decision by the Minister of Provincial Affairs and Attorney General, dated August 27, 1996.
Order
WHEREAS Julie E. Ireson has appealed a decision of the Minister of Provincial Affairs and Attorney General to issue a building permit to Melvin McQuillan to erect a potato storage warehouse in the Community of Elmwood; AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on September 26, 1996 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 ActIT IS ORDERED THAT
1. The appeal is hereby dismissed.
DATED
at Charlottetown, Prince Edward Island, this 14th day of November, 1996.BY THE COMMISSION:
Linda Webber, Chair
Anne McPhee, Commissioner
Emmett Kelly, 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.
1
Commission Order LA95-15, Joan and Gerard Blacquiere v. Department of Provincial Affairs and Attorney General, September 28, 1995.