Docket LA95004
Order LA96-02IN THE MATTER of an appeal by Clive Pickles against a decision by the Community of Alexandra, dated February 6, 1995.
BEFORE THE COMMISSION
on Tuesday, the 30th day of January, 1996.
Linda Webber, Chair
Anne McPhee, Commissioner
Debbie MacLellan, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion & Findings
3. Disposition
Order
Appearances & Witnesses
1. For the Appellant
Clive Pickles
The AppellantCatherine M. Parkman
Legal Counsel for the Appellant2. For The Community of Alexandra
Glen Beaton
CouncilorSheila White
Administrator
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 Clive Pickles (the Appellant). The Appellant is appealing a decision whereby the Community of Alexandra (the Community) denied approval for subdivision of property number 279661.
In accordance with the Planning Act, the Alexandra Official Plan and Alexandra Development Bylaw, the Community Council of Alexandra has the authority to approve applications to subdivide land. Pursuant to Section 3 of the Bylaw:
Subject to the provisions of this bylaw, Council shall apply the requirements of Parts I to VIII of the Planning Act Regulations in respect of any development in the Community of Alexandra.
Therefore, Section 24.(1) of the Planning Act Regulations applies within the municipal boundaries of the Community of Alexandra and provides that:
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 has received a certificate of approval therefor from the Minister.
Furthermore, Section 6.(1) of the Bylaw provides that:
No development is permitted except in conformity with this Bylaw and upon the issue of a building permit, subdivision approval or other approval by the Council of an application.
On June 3, 1994, Clive Pickles completed an application for approval to subdivide parcel number 279661 for single family dwelling use (Exhibit AL18).
On June 7, 1994, the Community advised Mr. Pickles by letter that "a decision has been deferred on this lot for the present time" (Exhibit AL20).
On June 20, 1994, Catherine M. Parkman appealed the Community's decision on behalf of Mr. Pickles. The Island Regulatory and Appeals Commission (the Commission) heard the appeal on October 4, 1994, and rendered a decision on November 4, 1994. The decision of the Commission was to order the Community Council to review the application for subdivision approval and issue its decision without delay.
The Community Council met on February 6, 1995 and notified Mr. Pickles, by letter dated February 8, 1995, that his application to subdivide property number 279661 was denied.
On February 21, 1995 Catherine M. Parkman appealed the decision of the Community on behalf of Mr. Pickles.
The Commission heard the appeal on June 7 and August 17, 1995 in Charlottetown.
2. Discussion & Findings
The Appellant Clive Pickles owns about 200 acres of land now situated in Alexandra. He purchased this land as four separate parcels (with three tax numbers) from several vendors. While the majority of this property was located within the Alexandra Community boundaries, part was initially situated within the boundaries of Pownal. Government-initiated actions resulted in all of his properties being consolidated into one tax number and the boundary line between Alexandra and Pownal being altered resulting in all of his properties being located in Alexandra. None of these facts are contested.
The effect of the consolidation of his lots so as to result in one tax number in one community has been a restriction on his ability to develop this land: the Community of Alexandra's position is that past history is irrelevant; the Appellant is now considered to own one parcel and all bylaws, including those which limit the number of lots that can be subdivided off one parcel, apply.
The Appellant's position is that he purchased the property as four separate parcels and the rules should apply to each one of these four parcels. Government actions – whether to consolidate or divide tax numbers or alter boundary lines for communities – cannot affect the rights inherent in each parcel.
While the problem can be described as above, the details of what happened in this case are helpful in understanding the Appellant's position.
Purchases
Initially the Appellant bought four parcels of land, described by him as follows:
- The "Jones property", approximately 33 acres; original tax number 389536.
- The "Enman property", approximately 62 acres; original tax number 389536.
- The "Beaton property", original tax number 279661.
- The "McKinnon property", approximately 90 acres; original tax number 279679.
The record is not completely clear but suggests that all of these purchases were during the early 1970's.
Some time after the Appellant's purchase of these parcels, the tax department consolidated these parcels "to save paperwork". The Appellant states that this was done at the initiative of the tax department and he knows of several people who were asked to consent to this. He did consent. As a result, in approximately 1978 all of the above parcels – formerly tax numbers 389536, 279661, and 279679 – became part of property tax number 279661.
Over the years the Appellant subdivided and sold lots:
A) The "Enman property" received approval for 5 lots to be subdivided, each approximately 200 feet by 100 feet and bordering on the Old Georgetown Road. (Lot numbers are references to the Gulf Survey Plan marked as Exhibit A9.)
Lot 1 – 0.39 acres sold August 26, 1986.
Approved by Community Affairs.
Lot 2 – Original lot kept by vendor when balance of Enman property was being sold to Appellant.
Lot 3 – 0.44 acres sold April 7, 1989.
Approved by Alexandra Community Council.
Lot 4 – 0.44 acres sold November 6, 1992.
Approved by Alexandra Community Council.
Lot 5 – 0.44 acres sold June 23, 1989.
Approved by Alexandra Community Council.
As well, the Alexandra Community Council approved in May, 1990 a parcel approximately 25 feet by 200 feet to be sold to the owners of Lots 1 and 2. This enabled those lots to meet the new bylaw requirements for minimum lot size – extending the depth of each lot from approximately 175 feet to approximately 200 feet.
B) The "McKinnon property" was also subject to subdivision of lots. (Lot numbers are references to the Gulf Survey Plan marked as Exhibit A10.)
Lot 11 – 2.57 acres sold April 26, 1990.
Approved by Alexandra Community Council.
Lot 12 – 14.11 acres sold March 9, 1994.
Approved by Alexandra Community Council.
Lot 13 – 9.70 acres sold April 29, 1994.
Approved by Alexandra Community Council.
Lot 14 – The subject of this appeal.
As mentioned above, the Community's position is that the Appellant owns only one parcel of land and as a result, the number of lots he has already subdivided requires them to treat his application to subdivide Lot 14 as a "major development."
Major development is defined pursuant to Section 5.(b) of the bylaws as follows:
"Major development" means a development involving the subdivision of more than five lots, a mobile home court, the erection of any commercial, industrial institutional or recreational building (excluding agricultural buildings) or any development which, in the opinion of the Council may occasion a general nuisance by way of odours, pollution, excessive traffic, noise or other disturbance.
Special rules apply to major developments.
The Appellant contends that: 1) approval was already given by the Community for even more than 5 lots to be subdivided from all of his parcels, 2) this is not a major development, each original parcel must be treated separately, and 3) Lot 14 met all requirements and either was or should have been approved.
Lot 11 and Lot 12
The Appellant refers to Exhibit A1 in support of his argument that the Community of Alexandra had previously approved in principle a 5 lot subdivision for the "McKinnon parcel." That Exhibit is a letter dated June 7, 1989, from John Pickard, Supervisor, Subdivision Development Section, Department of Community & Cultural Affairs to the Appellant. The letter stated:
Re: Case #12282 – Clive H. C. Pickles, Alexandra
Further to our telephone conversations, this will confirm that the Alexandra Community Council has notified me of approval in principle for your application to subdivide five (5) single family dwelling lots. We note that you now propose to include a 66 foot right-of-way allowance in the middle of the group of lots, and final approval will be subject to the following conditions:
1. Each lot having a minimum frontage of 100 feet and a minimum area of 20,000 square feet.
2. Completion of water and soil testing as requested by our Environmental Management Division.
3. The lots being surveyed and pinned in accordance with this Department's normal requirements.
With regard to condition #2, I am enclosing a copy of the Division's comments on your application. You should contact Mr. Jerry Stewart to make arrangements for the required tests; when testing has been completed, he will evaluate the results and let me know whether any special conditions for water supply or sewage disposal should be added to the final approval.
When the survey plan is ready, at least nine copies must be submitted for approval stamping.
If you have any questions about the Council's decision, please let me know.
While the Community argues that this does not constitute evidence of approval because the letter did not come from the Community, the Commission finds this letter sufficient evidence of Community approval. There is no doubt the Community and the Department worked hand-in-hand on such applications. The Appellant knew this and therefore often consulted with Departmental officials for advice. He was led to believe he could rely on them. The letter in question clearly states that the Community had approved in principle this subdivision of 5 lots. These were to be located along the Georgetown Road – two lots from what is marked Lot 13 on Exhibit A10 and three lots from Lot 12 on Exhibit A10, with a 66-foot wide right-of-way between the two. In addition, John Pickard testified that he was told in a telephone call from the Community that these lots had received approval in principle.
The Appellant's evidence is that after this approval was granted the Community held meetings and decided upon a planning approach that would discourage strip development of this type along the Georgetown Road. Larger lots were considered more desirable. The Appellant states that he agreed in principle with this idea and as a result voluntarily decided to alter his own development plans, abandoning the 5-lot subdivision along the road, creating instead Lots 12 and 13 as shown on Exhibit A10.
Lot 14
The Appellant also argued that Lot 14 was in fact approved, citing in support of this a letter (Exhibit A3) from Don Judson, Chairman of Alexandra Community Council, to the Appellant. The letter stated as follows:
Re: Case #14,106 – Clive H. C. Pickles, Alexandra
Property #279661
Evaluation of your proposal to subdivide a lot from your property at Alexandra has been completed.
The lot is suitable for single family dwelling use subject to the following conditions:
(1) The lot being all that parcel outlined on the orthophoto submitted by you for evaluation to the Council.
(2) The lot being surveyed and at least six (6) copies of the final survey plan being submitted to the Council in accordance with our normal requirements.
Please be advised that when survey plans have been submitted and approved, the Council will issue your building permit.
The Commission must, in this case, accept the position of the Community that there is no evidence of this letter ever having been sent. It was explained that it was a draft letter, never dated or signed, forwarded by the Department to the Community to use if they chose. We accept this explanation.
The Appellant further contended that if the letter did not indicate approval it at least suggested that the Department saw no reason to deny the application and in fact expected the Community to give its approval.
The Commission agrees that the conclusions drawn by the Appellant about the circumstances here are reasonable.
The cover letter (Exhibit A3) sent to Don Judson, Chairman of the Alexandra Community Council from John Hughes, Property Development Officer, Community and Cultural Affairs, dated November 17, 1992, contains the following paragraph:
Mr. Pickles then requested that I submit his proposal to your Council in accordance with our normal procedures. I am preparing a letter of approval for consideration and possible signature by your Council. You will note that a condition of approval is that survey plans be submitted and approved by your Council prior to the issuing of the building permit. Any variance from this is the decision of your Council. Please advise when your Council is prepared to issue the building permit and we will have the necessary documents prepared for your signature. We will also issue the sewage disposal permit at that time.
This letter certainly suggests that there are no problems anticipated in the approval process. However, it is clear from the letter that the Council has not in fact yet given its approval.
The appeal before us today relates to Lot 14 as well, but there are some differences between the application/decision under appeal and the application dealt with in the above-referenced letters. It appears from the evidence that in 1992 the proposed Lot 14 was to the east of Lot 11 in Exhibit A10, while in 1994 the proposed Lot 14 was to the west of Lot 11.
The application for subdivision of Lot 14 that was ultimately denied and is the subject of this appeal was dated June 3, 1994 (Exhibit AL18).
In a letter to the administrator of Alexandra Community Council dated March 21, 1994, John Pickard, Supervisor, Subdivision Development Section, Department of Provincial Affairs and Attorney General, describes this situation as follows:
… I have decided to file this new application in our case #14106; it is the 1992-93 case wherein you approved in principle a lot for him using the same right-of-way that serves the Phillip Koch and Nadine Smith lot …
Lot 14 is not in the same location as that proposal, however, it will use the same right-of-way, and from my latest discussion with the applicant, I believe this is intended to replace the earlier proposal. He has had this latest lot surveyed, and if your Council agrees, I shall prepare it for final approval.
In response, the Community held a public meeting to discuss the proposed subdivision of Lot 14. The Community took the position that this was the sixth lot which would be subdivided from the Appellant's land (see Exhibit AL19), and as such would be classified as a major development and fall under rules relating to major developments. (We note Exhibit AL15, entitled "Excerpt from April 25, 1994 Alexandra Community Council meeting" refers to the Clive Pickles application to subdivide Lot 14 as the "seventh lot Mr. Pickles has subdivided.")
For a variety of reasons, after the public meeting the Appellant was advised (by letter dated June 7, 1994) that a decision would be deferred "for the present time."
The Appellant appealed that decision to the Commission and by Order dated November 4, 1994, the Commission ordered the Community to render a decision on the Appellant's application to subdivide Lot 14.
By letter dated February 8, 1995, the Appellant was advised that Council had denied his application to subdivide Lot 14. The letter stated:
The decision is based on the following:
(1) The application for Lot 14 constitutes a major development of parcel #279661 as defined in the Alexandra Official Plan, i.e., a subdivision greater than 5 lots.
(2) Upon request for additional information to assist Council in making its decision, no concrete information has been provided.
The "additional information" referred to in number 2 above refers to statements made in a letter dated November 25, 1994 (Exhibit AL21) from the Community to the Appellant. In that letter it was stated:
As we have stated previously, the Alexandra Community Council considers your application to be a major subdivision, and as such we require further information to enable us to make a decision. We ask that you provide in writing a detailed plan outlining your intentions for the entire parcel #279661. As well, please provide details regarding your intentions as for [sic] as roads, water and sewage services which you might be planning for your subdivision.
The response from the Appellant was through his lawyer (Exhibit AL22), giving a general response but primarily opposing the treatment of the land owned by the Appellant and known as property #279661 as one parcel only for the purposes of subdivision approval. Taking the position that this was not a major development, the Appellant's lawyer stated that no further information needed to be provided by the Appellant.
Decision
The reasons given to the Appellant for denying him a permit to subdivide Lot 14 are founded upon a belief that property #279661 should be treated as one parcel for the purposes of development approval. The issue of failing to provide additional information as requested is only valid if the request was valid. The request was valid only if the property was properly treated as one parcel for development purposes. So everything turns on whether or not this is one parcel of land for development purposes.
The "major development" provisions could have been – and should have been, if the Community is correct in the position it now takes – applied in connection with other applications made by the Appellant. Mr. Pickard described the applications as follows:
1) The first application was for 3 lots from the Enman property.
2) The second application was for 5 lots from the McKinnon property (approved in principle).
3) The third application was for 1 lot (Lot 11) from the McKinnon property.
4) The fourth application was for 2 lots (Lots 12 and 13) from the McKinnon property – replacing the 5 lots approved in the second application.
5) The fifth application was for 1 lot, Lot 14.
This description in fact leaves out the first two lots subdivided – the 2 lots from the Enman parcel, one of which was kept by the Vendor at the time of the initial sale and one which was transferred to that Vendor a short time later. Mr. Pickard distinguishes them because they were applied for by the Vendor in 1972, not by the Appellant.
In any event, by the time of the "second application" above referred to by Mr. Pickard, the Community was in a position – if its present argument is correct – to apply the major development rules to the Appellant's applications.
It is also unclear how the Community arrived at its calculation of how many lots have, in fact, been subdivided. As noted earlier, for this application it is sometimes referred to as the sixth and sometimes as the seventh lot subdivided. If we consider the applications as listed by Mr. Pickard and described above – omitting the 5 lots approved in the "second application" – this Lot 14 becomes the seventh lot subdivided.
If in fact the land is one parcel for development purposes the Community has failed to deal with this properly on many occasions. However, this would not grant the Appellant any new rights.
The Community in its Development Bylaw incorporates Parts I to VIII of the Planning Act Regulations in respect of any development in the Community.
For many purposes the phrase "existing parcel of land" is what is relevant in the Regulations; this is defined as "any parcel of land or lot created prior to February 3, 1979."
The four lots described by the Appellant: the Enman parcel, the Jones parcel, the Beaton parcel and the McKinnon parcel were all in existence prior to February 3, 1979. The Appellant provided copies of the old school district maps for Alexandra (Exhibit A6) and Pownal (Exhibit A7). These showed that in 1970 these parcels were separated into three tax numbers: 279661, 279679, and 389536 (Exhibit A4b).
What we referred to as the Enman and Jones parcels may in fact have been one parcel by the time the Appellant acquired the property – and prior to February 3, 1979. It is not necessary for us to decide this point. The Lot in issue comes out of the "McKinnon property." In the future the Community will have to determine the proper status of the Enman/Jones parcels.
The evidence is not totally clear, but it appears that around 1978 all these parcels were given one tax number for the convenience of the tax department.
The community argues that there is major significance to this tax number, and that they haven't the resources to look into the history of each parcel. The Commission can find no legal basis for their opinion and none was put forth.
The legal boundaries of any given parcel cannot be altered at whim by government or anyone else deciding to give it a different identification number. The very purpose of subdivision planning rules is to ensure that boundaries don't change unless those changes are properly done within appropriate planning rules. Logically this applies to changes that increase the size of a property as well as decrease it. As well, legal boundaries can only validly change by way of legal documents. There is no deed that we are aware of that ever purported to consolidate or alter the boundaries of the original parcels purchased by the Appellant.
For the Community to argue that it does not have the resources to carry out its responsibilities is unacceptable. In such a case as this the Community need not undertake research. It simply must ask the applicant for the necessary information – copies of deeds, etc. If the bylaws won't allow this then perhaps they need to be changed. The Community cannot deprive property-holders of their rights simply because they don't want to make the effort to determine what category the property falls into. While we can sympathize with the burden this can place on a community, this is a responsibility of the community when it decides to adopt an Official Plan and Bylaw.
Glen Beaton on behalf of the Community argued that requiring the Community to go beyond identifying tax numbers would be a substantial change in policy and have serious implications for the province as a whole. The Commission cannot agree. In most cases it appears true that one tax number identifies one parcel. But that clearly is not universally true.
The Appellant testified that his inquiries of provincial officials indicated that it is no longer the practice of Government to give one property number to several parcels – because of problems like the one faced by the Appellant now.
In a memo to the Appellant dated September 29, 1994 (Exhibit A4c) Bobby Kenny, Chief of Operations, Provincial Revenue, stated as follows:
The present policy of the Mapping Section is to depict parcels as they are described in documents registered in the PEI Registry Office.
In the past, properties were sometimes combined upon request. This could result in a situation where an owner obtained three seperate [sic] parcels of land but our property maps depict them as one parcel.
Our experience with government also shows that even "one parcel" with one tax number may have to be treated as two parcels, e.g., when it is dissected by a public road. One entranceway permit in such a circumstance would deprive an owner of use of part of his land.
In addition, the history of this parcel strongly suggests that up until 1994 the Council had accepted that these four parcels were separate and apart from one another. A letter dated May 30, 1990 (Exhibit Al7) is confusing because it states that at that time the Council considered that 4 lots had been subdivided from parcel #279661. How this was calculated has not been explained. Except for this letter, nothing appears to consider "major development" an issue until the 1994 application for Lot 14. We note that by letter dated February 7, 1994 (Exhibit AL11) the Appellant was advised that two additional lots – Lots 12 and 13 – had been approved. That letter referred to the previous proposal in 1988 for 5 lots which had been replaced by this proposal for 2 lots.
We also note that the deed (Exhibit A4) from Stanley Mol to the Appellant in 1973 separately describes the "McKinnon parcel."
The Commission finds no validity in the reasons given for the denial of the Appellant's application to subdivide Lot 14 as outlined on the survey plan marked Exhibit A10.
This is the second time this matter has come before the Commission. The letter from Mr. Pickard to the Community dated March 21, 1994 (Exhibit A3) indicates that there were no impediments to issuing the subdivision approval sought by the Appellant. We can see no valid reason for delaying the Appellant any longer.
The appeal is allowed and the Community ordered to approve the subdivision of Lot 14 and issue a certificate of approval within 30 days of the date of this Order.
3. Disposition
For the reasons stated the appeal is allowed.
IN THE MATTER of an appeal by Clive Pickles against a decision by the Community of Alexandra, dated February 6, 1995.
Order
WHEREAS the Appellant appealed a decision by the Community of Alexandra, dated February 6, 1995 to deny an application to subdivide a lot from property number 279661;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on June 7 and August 17, 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 allowed and the Community Ordered to approve the subdivision of Lot 14 and to issue a certificate of approval within 30 days of the date of this Order.
DATED at Charlottetown, Prince Edward Island, this 30th day of January, 1996.
BY THE COMMISSION:
Linda Webber, Chair
Anne McPhee, Commissioner
Debbie MacLellan, 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.