Docket LA95020
Order LA96-04

IN THE MATTER of an appeal by George Campbell, Wayne Cousins and John Cousins against a decision by the Department of Provincial Affairs and Attorney General, dated July 21, 1995.

BEFORE THE COMMISSION

on Friday, the 8th day of March, 1996.

John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
James Nicholson, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion & Findings

3. Disposition

Order

Appearances & Witnesses

1. For The Appellants

Witnesses:
George Campbell
Wayne Cousins

2. For Developer

Witnesses:
Robert Heaney
Edison Heaney

3. For the Department

Witness:
John Pickard

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 George Campbell, Wayne Cousins and John Cousins (the Appellants) against a decision by the Department of Provincial Affairs and Attorney General (the Department) to approve an application by Robert Heaney (the Developer) to subdivide property number 787465 into three lots for summer cottage use.

In accordance with the Planning Act and the Planning Act Regulations, the Minister of Provincial Affairs and Attorney General has the authority to approve applications for the subdivision of land.

On July 7, 1993, the Developer submitted an Application for Permission to Subdivide Land (Exhibit P2). The property is located in Park Corner and the existing land use is indicated as agriculture and the proposed use for part of the existing parcel is for three summer cottage lots. The property is within the Princetown Point - Stanley Bridge Area and forms part of the Coastal Area pursuant to the Coastal Area Regulations.

On September 16, 1993, the Department approved in principle the proposed subdivision subject to conditions (Exhibit P6).

On July 21, 1995, the Department notified the Developer that the plan of subdivision was approved (Exhibit P19).

On August 9, 1995, the Appellants appealed this decision to the Island Regulatory and Appeals Commission (the Commission) (Exhibit A2).

The Commission heard the appeal on November 16 and 17, 1995, in Charlottetown.

2. Discussion & Findings

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

The Appellants submitted an exhibit entitled Prince Edward Island Coastal Area Policy (Exhibit A3) and argued that according to this policy the subdivision of three lots for summer cottage use in this area is premature and should not be approved. The Appellants argued that many of the general development principles stated in the policy document will be violated by allowing this subdivision to proceed. The Appellants contended that the Act and the Regulations are not consistent with this policy and the policy should prevail.

At a previous appeal before the Commission, the Department presented evidence to support that any additional cottage lots in this area would be considered premature - the Appellants argued that nothing has changed since that time and therefore this proposed subdivision should be considered premature.1

The Appellants submitted that the proposed subdivision will be taking valuable farmland out of production and land use conflicts with adjacent agricultural uses will occur. In addition, the Appellants argued that the development of these cottage lots will detract from the viewscape.

The Appellants also argued that the Department erred and should not have granted final approval as the Developer has not complied with the conditions as set out by the Department for establishing and maintaining a treed buffer around the subdivision.

The Appellants submitted that the Commission should allow the appeal and overturn the decision of the Minister.

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

In the view of the Department the application to subdivide three summer cottage lots from this parcel complies with the Coastal Area Regulations and it had no choice but to approve the subdivision.

The Department submitted that the circumstances in this case are not the same as the previous case as argued by the Appellants. The Department submitted that the statutory requirements have changed and that pursuant to the Regulations which apply to the Princetown Point - Stanley Bridge Area, this application for three summer cottage lots is permissible.

This proposed subdivision is not considered premature by the Department.

The Department argued that the appeal should be dismissed.

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

The Developer contested the Appellant's arguments on prematurity and submitted that the development is not premature as there is a strong market for this form of subdivision.

The Developer argued that although it will be difficult to grow trees in this area for the purpose of a buffer he will comply with this condition and any other condition set by the Department.

Appearing on behalf of the Developer, Edison Heaney submitted that the development will not detract from the area but will enhance it.

The Developer submitted that the appeal should be dismissed and the decision of the Minister upheld.

Commission Decision:

After considering all the evidence presented and after reviewing the provisions of the Planning Act and the Planning Act Regulations, it is the decision of the Commission to deny the appeal. The reasons for the Commission's decision are as follows:

It is generally understood that in exercising its authority to decide appeals pursuant to Section 28 of the Planning Act, the Commission is confined to the existing law in the same way as the Minister or any municipal council. In this case the decision of the Commission is subject to the Planning Act Regulations.

In general, the Appellants' case focuses on what they believe to be inconsistencies between government policy and regulation respecting the subdivision of land for summer cottage use in this area.

The Commission believes that in order to understand the basis for current government policy and how the Planning Act Regulations pertaining to the subdivision of land in the Coastal Area and in particular the Princetown Point - Stanley Bridge Area are to be construed, it is useful to examine the origin of these policies and regulations and how they have evolved.

The Commission has reviewed the evidence as submitted by the Appellants including Exhibit A3 - Prince Edward Island Coastal Area Policy, which refers to the 1973 and 1990 Royal Commissions on the land.

From reviewing the 1990 Report of the Royal Commission on the Land, we understand that many of the issues and concerns expressed by the Appellants in this appeal were in fact expressed by Islanders to the Royal Commission. The following outlines Government's response to these issues.

In March 1991, the Province designated by regulation an area 500 metres back from the shoreline of the province and 500 metres seaward as the Coastal Protection Area and placed a moratorium on most cottage and residential development for a period of up to 18 months. It was during this period that government defined and adopted policies for development of the Island's coastal area.

In June of 1991, pursuant to Section 7 of the Planning Act, Government adopted a general land use policy which states, among other things, that a compelling need exists to ensure that the land base of the Province is developed and used in a sustainable fashion… (Order of Executive Council EC526/91).

On March 19, 1992, by Order of Executive Council (EC158/92), the Government adopted under Section 7 of the Planning Act the Coastal Development Policy (to be effective March 23, 1992). According to the policy statement, the general intent of these policies is that the development of land or its subdivision in the coastal area will be permitted to continue, but that it will be regulated to ensure that Provincial objectives and principles established for development in the coastal area are met.

The policy contains general principles for development in the coastal area in an attempt to ensure that development shall not adversely affect sustainable development objectives, degrade the natural environment, cause land use conflicts, create safety hazards, or cause public health risks. In principle, subdivision development shall:

  1. be driven by market demand;
  2. produce a net economic benefit for the Province;
  3. result in development within a reasonable time;
  4. be tied to lot-owner responsibilities for maintenance;
  5. strengthen existing communities; and
  6. be the responsibility of the developer, in terms of the costs of gaining approval.

In March 1992, the former Department of Community and Cultural Affairs released a document entitled Prince Edward Island Coastal Area Policy based on the above noted policy by Executive Council (Exhibit A3).

On July 9, 1992, Executive Council directed the Department of Community and Cultural Affairs and the Coastal Area Review Commission to conduct a preliminary planning study of the Princetown Point - Stanley Bridge region. The study was entitled Towards a Management Plan for the Princetown Point - Stanley Bridge Special Planning Area.2

Among other purposes the study was to provide basic data and other information to support the objective of preparing an effective land use and development plan for the Princetown Point - Stanley Bridge region.

The study presented several conclusions, including the need to designate the Princetown Point - Stanley Bridge Area as a Special Planning Area under the provisions of the Planning Act.

On June 3, 1993, Executive Council adopted under Section 7 of the Planning Act, policy pertaining to the Princetown Point - Stanley Bridge Area (to be effective June 12, 1993). The general intent of this policy was to provide a management strategy respecting the land and beach resources, the traditional landscape, and the natural environment, and to achieve a sustainable balance between development and resource use.

On June 13, 1993, Executive Council also established specific Regulations pursuant to Section 8 of the Planning Act for the Princetown Point - Stanley Bridge Area.

From this review of the various policies and regulations pertaining to coastal area development, the Commission understands that Government has identified and attempted to address a number of issues which may negatively impact on the coastal resources and create land use conflicts. One specific issue recognized by Government and of major concern to the Appellants is premature development.

On occasion the Commission has considered the meaning of premature development with respect to the Planning Act Regulations. It is a concept difficult to define. Some argue that prematurity is a market derived concept where the law of supply and demand should dictate the number of lots one should allow on the market, considering the location of these lots in relation to rate of purchase and development. By example, arguments have been made that given the large number of existing undeveloped summer cottage lots in the Princetown Point - Stanley Bridge Area no new subdivisions should be approved until a certain percentage of existing lots are built upon. As a result, approving new or additional lots before the market absorbs existing lots would precipitate premature development. Others argue that prematurity simply means taking land out of agriculture or natural resource production before its time.

Although the Act or Regulations do not specifically define premature development or the concept of premature development, the Commission believes some guidance in defining or applying the concept is found in the Statement of General Planning Principles and Policies contained in Part I of the Planning Act Regulations. Part I, subsection 2 of the Regulations sets out how the regulations are to be construed:

These regulations shall be construed in accordance with, and for the purpose of giving effect to, the statement of general planning principles and policies set out in this part.

Subsection A. sets out both the general and specific goals to be achieved by implementation of the subdivision regulations under Part V:

A. SUBDIVISION OF LAND

Part V (Subdivision regulations) is designed to achieve the following goals:

(a) generally

(i) to control haphazard and unplanned development and prevent unnecessary loss of prime agricultural land,

(ii) to ensure a form of development in the province that is efficient in terms of servicing and provides a maximum of convenience and safety,

(iii) to minimize pollution, environmental degradation, and land use conflicts,

(iv) promote good subdivision design and practice in accordance with recognized standards and principles; and

(b) specifically

(i) to encourage large urban-type residential subdivisions (more than four lots) locating in areas where at least one piped service (sewage or water) is or can be made available,

(ii) to confine residential growth in rural areas to small subdivisions (four lots or less),

(iii) to limit unserviced residential growth in areas immediately adjacent to those towns and communities that have sewage or water systems,

(iv) to require developers to pay for the costs of development,

(v) to approve large subdivisions only where there is a demonstrated need for the subdivision and where it can be expected that the lots will be sold and built upon within a reasonable period of time,

(vi) to promote a good quality of residential neighborhood.

In addition, subsection F. of Part I - Subdivision for Summer Cottage Use - outlines specific provisions as they pertain to the summer cottage subdivision regulations contained in Part VIII of the Regulations. This section identifies, inter alia, that in the development of summer cottage subdivisions there is a need to control the provision of basic services such as roads, water, sewers, electricity and recreation areas through such measures as the imposition of subdivision agreements between the developer and the province.

With respect to the guiding principles and policies contained in Part I, it is the Commission's understanding that any decision made in the enforcement of the regulations including those which apply to the subdivision of land for summer cottage use in this area, must contribute to the achievement of these principles and policies.

Pursuant to the provisions of Part V and Part VIII of the Regulations, any person who wants to subdivide land for summer cottage use is required to make application and receive a permit from the Minister of Provincial Affairs and Attorney General. Therefore, when an application for summer cottage subdivision is reviewed by the Minister, general principles found in Part I, relevant to such factors as the unnecessary loss of agricultural land, confining small subdivisions in rural areas and controlling the proliferation of such subdivisions must be considered.

In addition to these considerations, Section 25 of the Regulations sets out specific requirements for subdivision approval, including the provision which pertains to premature development.

According to subsection 25.(2)(c):

No person shall be permitted to subdivide land if, in the opinion of the Minister, the proposed subdivision

…

(c) would precipitate premature development or unnecessary public expenditure, or would place undue pressure, on the municipality or the province to provide services. (Emphasis added)

…

The Commission heard from the Department that the regulation pertaining to premature development (Section 25.(2)(c)) has existed since the time the Planning Act and its Regulations were first proclaimed. According to the Department, however, the experience has been that the enforcement of this regulation has been limited primarily to the time period between 1970's and early 1980's.

In the Commission's view, the meaning of premature development is multi-disciplinary and imports social, economic and fiscal considerations.

In the general application of the Regulations, Section 25 clearly involves discretion on the part of the Minister.

Although, as discussed above, the Regulations do not specifically define what constitutes premature development the Commission believes that the regulations including the concept of prematurity must be applied within the context of the principles and policies outlined in Part I of the Regulations.

In addition to Part I, the Commission must consider the Coastal Area Policy earlier referred to. The Commission finds no regulation in the Coastal Area Regulations relating to premature development. Therefore, after an examination of the issues defined in the background reports, the coastal area policy and the coastal area regulations, it is reasonable to assume that government has addressed the issue of premature development by establishing a set of coastal area regulations which permit a certain level of development in a controlled manner. Through the adoption of the Coastal Area Regulations and more specifically through the adoption of those regulations which focus on the Princetown Point - Stanley Bridge Area, the issues pertaining to the premature subdivision of land have been addressed. The Commission believes that the Lieutenant Governor in Council has determined what it believes to be acceptable development parameters which achieve a balance between development and resource use.

By example, the Coastal Area Regulations prescribe development standards for the subdivision of land in coastal areas. Section 17 of the Coastal Area Regulations limits the amount of lots which may be subdivided from a parcel at any one time:

Section 17.

(1) Final approval shall be given only for that phase of the subdivision that may reasonably be able to be developed over a five year period from the date of final approval.

(2) The total number of lots that may be approved in any one phase of a subdivision shall not exceed 20 lots, unless the developer can demonstrate to the satisfaction of the Minister that the number of lots to be approved in any phase should exceed 20.(emphasis added)

(3) At such time as 50 percent of the lots in the previously approved subdivision have dwellings on them, the subdivider may present the next phase of the subdivision for approval.

The Commission finds that pursuant to the provisions of Section 2 of the Coastal Area Regulations which pertain to the Princetown Point - Stanley Bridge Area, the Regulations limit subdivision development in some areas to an even greater extent (areas outside 1,000 feet of the shore). Such standards include, inter alia, the number of lots which shall be permitted to be subdivided, set back and buffer requirements and the design of the subdivision.

Section 2.6(2) of the Regulations that apply to the Princetown Point - Stanley Bridge Area sets out the number of lots which may be permitted in an area outside a distance of 1,000 feet from the shore:

Subdivisions of three lots or less shall be permitted in areas outside a distance of 1000 feet from the shore, except where topographical or environmental conditions are unsuitable.(emphasis added)

The Commission believes that pursuant to the provisions of the Planning Act Regulations, an application to subdivide land for summer cottage use in this area must satisfy both the general rules which are applicable to all areas to which the Regulations apply, (pursuant to Section 7 of the Planning Act) including Part V - the Subdivision Regulations and Part VIII - Summer Cottage Subdivision regulations and those special provisions relating to the coastal area under the Coastal Area Regulations. Both sets of regulations must be applied and shall be construed in accordance with, and for the purpose of giving effect to, the statement of general planning principles and policies (Part I) and the Coastal Development Policy .

The Commission believes that the proposed three lot summer cottage subdivision on this property conforms to the Planning Act Regulations. In addition, the Commission finds that although there will be some loss of agricultural land with associated potential land use conflicts, the implications of the loss and potential conflicts would have been factored in when the Government limited development to three lots. Therefore, such a proposal would be an acceptable form of development within the intent of the regulations. Also, the proposal will be sufficiently serviced by on-site water and sewage disposal systems. The provisions of a thirty foot buffer will minimize land use conflicts. As the subdivision proposal is limited to three lots in conformity with the Regulations, the Commission can find little reason to believe that the developer will be unable to sell the three lots within a reasonable period of time.

In considering the potential impact of this subdivision proposal, the Commission agrees with the Appellants that the subdivision and development on the three lots may visually detract from the landscape. However, although from a visual perspective this may not be a desired outcome, the application of the general Regulations and those Regulations which pertain to the Princetown Point - Stanley Bridge Area within the context of the Planning Principles stated in Part I and the Coastal Development Policy, permit this scale of subdivision to be located within this area.

Therefore, the Commission believes in this case the creation of three lots on this parcel of land is suited to the purpose for which the subdivision is intended and is not considered premature for purposes of the Regulations.

In the result, the Commission finds that the proposed subdivision of three summer cottage lots complies with the provisions of the Planning Act Regulations. Therefore, the Commission must deny the appeal.

With respect to the arguments raised by the Appellants regarding the implementation of the required 30 foot treed buffer, the Commission finds that the Developer must comply with the conditions as set out by the Department and contained on the approved plan of survey (Exhibit P21) or he would be in contravention of these regulations (Section 33.(2) of the Regulations).

3. Disposition

For the reasons stated the appeal is denied.

IN THE MATTER of an appeal by George Campbell, Wayne Cousins and John Cousins against a decision by the Department of Provincial Affairs and Attorney General, dated July 21, 1995.

Order

WHEREAS George Campbell, Wayne Cousins and John Cousins have appealed a decision of the Department of Provincial Affairs and Attorney General to approve a three lot summer cottage subdivision in Park Corner;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on November 16 and 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 hereby denied.

DATED at Charlottetown, Prince Edward Island, this 8th day of March, 1996.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

James Nicholson, Commissioner

Anne McPhee, 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 Appeal filed in 1992 by Robert Heaney against a decision by the Department of Community and Cultural Affairs to deny an application to subdivide five lots. The appeal was subsequently withdrawn by the Appellant.

2 This document was entered as an exhibit in the previous appeal before the Commission involving Robert Heaney v. Department of Community and Cultural Affairs, 1992, and was referenced in this appeal by the Appellants, although not submitted as an exhibit.