Docket LA95019
Order LA96-03

IN THE MATTER of an appeal by Donald Clarey & Keith McKenzie against a decision of the Department of Provincial Affairs and Attorney General, dated July 27, 1995.

BEFORE THE COMMISSION

on Friday, the 23rd day of February, 1996.

Linda Webber, Chair
Anne McPhee, Commissioner
Emmett Kelly, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion & Findings

3. Decision & Order

4. Disposition

Order

Appearances & Witnesses

1. For the Appellants

Legal Counsel:
Sean Halley

Witnesses:
Donald Clarey
Keith McKenzie
Edith McKenzie

2. For the Developer

Legal Counsel:
Bernard McCabe

Witnesses:
Eric Hammil
Crystal MacDonald
Wayne Clark

3. For the Department

Witness:
Niall MacKay
Kenneth Campbell

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 Donald Clarey and Keith McKenzie (the Appellants) against a decision by the Department of Provincial Affairs and Attorney General (the Department) to approve a building permit for WPJ Farms Ltd. (the Developer) to erect a livestock barn on the Whim Road.

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 June 15, 1995 WPJ Farms Ltd. made application to the Department for a building permit to erect a livestock barn (Exhibit P1). On June 15, 1995 WPJ Farms Ltd. also completed a form for Environmental Assessment Intensive Livestock Information and this was submitted to the Department of Environmental Resources.

On July 5, 1995 Honorable Barry Hicken, Minister of Environmental Resources granted approval to proceed with the undertaking pursuant to Subsection 9(1) of the Environmental Protection Act (Exhibit P4).

The Department issued a building permit on July 27, 1995 (Exhibit P5). On November 6, 1995 the Department revised the building permit to correct the Provincial Parcel number (Exhibit P6).

On August 1, 1995 Donald Clarey submitted a letter of appeal to the Island Regulatory and Appeals Commission (the Commission) (Exhibit A1). On August 16, 1995 Keith McKenzie submitted a letter of appeal to the Commission (Exhibit A2). The Appellants agreed to have their appeals combined and heard as one appeal.

The Commission heard the appeal at a public hearing on October 17, and November 14 and 28, 1995.

2. Discussion & Findings

The principal arguments for the Appellants may be summarized as follows:

During the hearing the Appellants stated that they do not object to WPJ Farms Ltd. erecting a barn for a cattle and feed operation but do object to the location of the barn and its proximity to adjacent properties.

The Appellants contend that the information as submitted on the application for a building permit and the Environmental Assessment form is not correct. Donald Clarey stated that he owns a lot which fronts on the Whim Road and is bounded on three sides by the developer's property. This was not indicated on either application. In addition, the Appellants claim that on the application for a building permit, the developer states that the barn would be used for cattle. In fact, several pigs have been stored in the barn. The Appellants argue that this information should have been included on the application and considered by the Department when it issued the building permit and by the Department of Environmental Resources when it granted approval for the proposed undertaking. Because this information was not indicated on the applications any assessment carried out or conclusion reached by either Department could not be accurate. Further to this issue, the Appellants question why Government did not consult with local area residents regarding the potential environmental impacts which may result from this operation.

The Appellants contend that the location of the barn combined with the slope of the land will create problems associated with run-off for Donald Clarey's lot. The Appellants also argue that the development of the barn in this location will affect the value of their properties and their quality of life.

The Developer's management practices of spreading crab bodies on his land and storing piles of culled potatoes outside the barn for excessive periods of time were also criticized. These practices resulted in an increase in obnoxious odors and an increase in flies.

The Appellants stated that although the Whim Road was primarily an agricultural area there are now several non-farm residences along the road and this has changed the character of the road to residential. The Appellants submitted as evidence a petition signed by several residents of the Whim Road who support their appeal (Exhibit A5).

The Appellants request that the building permit be revoked and the Developer directed to resubmit an application for the Department's consideration with the correct information.

The principal arguments for the Department may be summarized as follows:

The Departmental representatives stated that they examined the proposal pursuant to the provisions of the Planning Act Regulations and consulted with officials of the Department of Environmental Resources, as is their normal procedure when dealing with intensive livestock operations.

The Departmental representatives stated that they visually inspected the site along with a representative from the Department of Environmental Resources. Mr. Niall MacKay, Property Development Officer, submitted that although the property owned by Donald Clarey was not disclosed, the proposed barn in any event meets the required set back provisions of the Planning Act Regulations.

Mr. MacKay stated that the area is predominantly a farming community and the proposed barn is an acceptable form of development for this area. He argued that since the barn complied with the provisions of the Regulations they had no alternative but to issue the building permit.

The Department's position is that the barn meets the provisions of the Planning Act Regulations and therefore the appeal should be denied.

The principal arguments for the Developer may be summarized as follows:

The Developer presented several witnesses in support of his development who submitted that the operation was a typical small feeder operation which if well maintained and managed should not result in any harmful impacts.

The Developer stated that he is leasing the property from Enterprise P.E.I. and had no knowledge that Donald Clarey's lot existed until advised of this after he had applied for the building permit in question. The Developer's position is that because he had no knowledge of this lot, he did not deliberately attempt to mislead the Department by not providing this information on the application and his building permit should not be jeopardized because of this defect in his application.

3. Decision & Order

After giving full consideration to the evidence submitted in this case it is the decision of the Commission to allow the appeal. The reasons for the Commission's decision are as follows:

The Appellants argue that the proposed development will have a severe negative impact on the surrounding properties: that their property values will decrease, run-off will occur as a result of the location of the barn, and there will be an increase in obnoxious odors and flies. Although the Appellants did not refer to a specific section of the Regulations, the Commission believes that the Appellants rely, in part, on Section 15.(1) of the Regulations as the basis for these 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;

...

(d) would result in undue damage to the natural environment;

(e) would have a detrimental impact on surrounding land uses; …

…

This section requires the exercise of discretion by the Minister. The information required to be disclosed on an application for a building permit provides the basis for the exercise of this discretion.

In reviewing the evidence submitted in this case, the Commission finds that the application for a building permit lacks significant relevant factual information, including the location of Donald Clarey's lot and the actual distance to property lines. Clearly, without this information, the Minister could not have given full and adequate consideration to whether the proposed building or its use would comply with the provisions of Section 15 of the Planning Act Regulations.

During the hearing the Commission heard from legal counsel for the Developer that because the Developer had no knowledge of the Clarey lot he cannot be held accountable for the information not being provided on the application. The Commission cannot agree and believes that on an application for a building permit there is an onus on the applicant completing the form to provide the correct information.

Whether a revised application with complete and accurate information would result in a change of decision by the Minister, the Commission cannot speculate. However, the Commission believes it is essential for the Minister to have complete disclosure of all information to make an informed decision about whether the proposed development would conflict with the provisions of the Regulations.

As to the evidence submitted by the Appellants pertaining to environmental degradation, this is another matter that could not be properly decided upon without having all the relevant information in the application.

In regard to the Minister of Environmental Resources also not having had accurate information upon which to base his decision, as the Commission noted at the hearing the Commission has no jurisdiction to hear an appeal from any decision made pursuant to the provisions of the Environmental Protection Act.

Evidence about the management practices of the Developer was inconsistent, some witnesses complaining and some witnesses praising. On this matter the Commission finds that the Planning Act Regulations do not specifically govern farm management practices and therefore these matters are relevant only insofar as they support an argument under ss.15(1) referred to above.

The Commission heard strong arguments on behalf of the Developer that he was a young farmer who should be encouraged to do what he can to make a success of his operation, rather than be put through a process that allows complainants to discourage him. We certainly agree that it is good social policy for PEI to encourage young people to enter the agricultural field. However, our support for this principle does not lessen our responsibility to ensure that the integrity of the planning process is respected. The failure to make known to the Minister the existence of this lot so close to the proposed barn is not, in our view, a minor matter. Any landowner has the right to expect that the existence of his adjacent property will be taken into consideration in a situation like this.

Therefore, it is the decision of the Commission to quash the decision of the Minister and declare that the building permit issued on July 27, 1995 and subsequently revised on November 6, 1995 is invalid. The Developer should submit to the Minister a new application and site plan with correct information.

Comment

During the hearing it became evident to the Commission that there was willingness on behalf of both the Developer and the Appellants to resolve these issues. Suggestions were made about the removal of the culled potatoes, ceasing to spread crab bodies on the land or swapping land with Donald Clarey to allow him to retain a lot but in a different location. Continued discussions of these matters by the parties could ensure a long-term resolution of many of the issues raised before the Commission.

4. Disposition

For the reasons stated the appeal is allowed and the decision of the Minister to issue building Permit No. K-151-95 is hereby quashed. The building permit issued on July 27, 1995 and revised on November 6, 1995 is declared invalid. Before a new permit can be considered, the Developer must submit to the Minister an application and site plan with correct and accurate information.

IN THE MATTER of an appeal by Donald Clarey & Keith McKenzie against a decision of the Department of Provincial Affairs and Attorney General, dated July 27, 1995.

Order

WHEREAS Donald Clarey and Keith McKenzie appealed the decision of the Minister to issue a building permit to WPJ Farms Ltd., dated July 27, 1995 and revised on November 6, 1995;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on October 17 and November 14 and 28, 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 Decision of the Minister to issue building permit No. K-151-95 is hereby quashed;

DATED at Charlottetown, Prince Edward Island, this 23rd day of February, 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.