Docket LA95031
Order LA97-01IN THE MATTER of an appeal by Larry and Dolores Doucette against a decision by the Minister of Provincial Affairs and Attorney General, dated September 28, 1995.
BEFORE THE COMMISSION
on Friday, the 24th day of January, 1997.
Linda Webber, Chair
Clayton Bulpitt, Commissioner
Debbie MacLellan, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Preliminary Matter
3. Discussion
4. Reasons for Decision
5. Disposition
Order
Appearances & Witnesses
1. For The Appellants
Witness:
Larry Doucette2. For The Minister
Witness:
Gerald McMillan
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 Larry and Dolores Doucette (the Appellants) against a decision by the Minister of Provincial Affairs and Attorney General (the Minister) to deny permission to subdivide a lot from Provincial Property Number 447672 located at Pleasant View.
On August 23, 1995 Larry Doucette submitted an application to subdivide Provincial Property Number 447672 to create a lot for single family dwelling use (Exhibit D1).
On behalf of the Minister, Gerald McMillan notified Mr. Doucette by letter dated September 28, 1995, that his application was denied because " … the back hoe test pits that were dug on the proposed lot indicated that the water table is less than four feet from the surface" (Exhibit D7). Mr. McMillan stated that the application failed to comply with Sections 15, 19 and 25 of the Planning Act Regulations.
The Appellants appealed this decision by submitting a letter to the Island Regulatory and Appeals Commission (the Commission) on October 23, 1995 (Exhibit A2). On November 9, 1995 the Commission received a subsequent Notice of Appeal submitted by the Appellants (Exhibit A3).
The Commission heard the appeal at a public hearing conducted in Charlottetown on December 10, 1996.
2. Preliminary Matter
At the commencement of the hearing the Commission raised a preliminary matter pertaining to the Commission's jurisdiction to hear this appeal.
Pursuant to the provisions of the Act, a person's right of appeal is limited under subsection 28.(1) which states:
ss. 28.(1)Subject to subsections (2), (3) and (4), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act may, within twenty-one days of the decision appeal to the Commission. (emphasis added)
In this case we understand that Mr. McMillan notified the Appellants by letter dated September 28, 1995 of the decision to deny the subdivision application. The Appellant's letter of appeal was received by the Commission on October 23, 1995 which is twenty-five days after the decision was made.
By letter dated October 27, 1995, the Commission requested the Appellants provide information as to why the letter of appeal was received by the Commission beyond the twenty one day appeal period (Exhibit C1). The Appellants responded in a letter to the Commission dated November 2, 1995 stating among other things: "the only explanation is the long length of time it takes a letter to go from St. Louis to Charlottetown" (Exhibit A2).
Mr. Doucette stated during the hearing that he believed the letter of appeal was mailed prior to the expiration of the 21 day appeal period.
Mr. McMillan stated that the Department was willing to proceed with this appeal hearing and deal with the substantive issues of the case.
After hearing submissions from the parties on the preliminary matter, the Commission decided that it would not adjourn the hearing to make a determination on this issue and that it would proceed to hear submissions by the parties on the substantive issues of the appeal.
As to the preliminary matter, the Commission has considered the submissions by the parties and has examined the envelope which contained the letter of appeal. The Commission concludes that the date stamped on the envelope by Canada Post is not legible and therefore the exact date the letter was mailed cannot be confirmed. As there is no conclusive evidence to contradict the Appellants' position and the Respondent does not contest the issue, the Commission determined that it does have the jurisdiction to hear this appeal.
3. Discussion
The following discussion pertains to the substantive matters of this appeal.
The Appellants
The Appellants' position may be summarized as follows:
Mr. Doucette states that the property is approximately 6.25 acres in size and his proposal is to subdivide a portion of the parcel to create a lot for his daughter.
In a letter received by the Commission on October 23, 1995, the Appellants state that they built a house on the property about 20 years ago and have never experienced any problems with drainage (Exhibit A1). The Appellants contend that other houses have been built in the immediate area on land that is "much lower and wetter" than theirs.
Mr. Doucette stated during the hearing that he has made improvements to the property by removing brush and adding fill to increase the elevation of the property. He contends that by making these improvements and by adding a ditch around the property there should be no problems associated with drainage.
In conclusion, Mr. Doucette states he is not satisfied with the Department's decision and requests the Commission allow him to subdivide the property as proposed.
The Minister
The Minister's position may be summarized as follows:
On September 12, 1995, Gerald McMillan assessed two test pits and completed a pre-development inspection report (Exhibit D3). The test results for both pits indicate:
- the water level is less than four feet below the surface;
- the top twelve inches of soil have a gray color which indicates that the water table is at or near the surface for part of the year; and
- the plant roots did not extend more than 12 inches into the soil.
Mr. McMillan also submits that he reviewed the soils survey maps which classify the soil in this area as belonging to the Corey Point and Rocky Point series and the limiting factor of these soils is wetness (Exhibit D5).
The Department forwarded a copy of this proposal to the Department of Environmental Resources for their review. The Department of Environmental Resources stated that they support the Department's assessment of the property (Exhibit D4).
The Department concluded that based on the evaluation of the site and the assessment of the soil survey information, the site cannot support an on-site sewage disposal system and therefore they had no alternative but to deny approval for the subdivision of the lot. The Department states that the application was denied pursuant to Sections 15, 19 and 25 of the Planning Act Regulations.
The Department requests the appeal be denied.
4. Reasons for Decision
During the hearing the Department submitted an excerpt from the Royal Gazette dated June 8, 1996, pertaining to amendments to the Planning Act Regulations, and cited specifically subsection 36.(2) as it relates to upgrading a lot (identified as Executive Order Number - EC370/96). Subsection 36.(2) states:
ss36.(2) Except where such a lot is serviced by a central sewerage system, development of a Category III shall not be permitted unless it is upgraded, to the satisfaction of the Minister, to conform with Category II as described in clause (1)(b).
The Department states that the provisions of this section do not permit a Category III lot to be upgraded and developed.
The Commission has reviewed the Department's submission and finds that as the application and decision regarding this particular parcel was made in 1995 the amendment cited by the Department is not applicable. At the time of the application the regulation in effect pertaining to upgrading a lot was subsection 37.(3) - Executive Council Order Number - EC693/94. This amendment was effective on November 12, 1994.
Subsection 37.(3) of the November 12, 1994 amendment states:
ss37.(3)Except where a lot is served by a central sewage disposal system, development of a Category III lot shall not be permitted unless upgraded to a Category II lot satisfactory to the Minister.
During the hearing Mr. McMillan stated that there is no difference to the interpretation given to these sections as they apply to upgrading a Category III lot.
The Commission cannot understand the Department's position that the upgrading of a Category III lot is not allowed. While Departmental officials may doubt the ability of the lot to be upgraded to an extent "satisfactory to the Minister", there appears to be no prohibition in the wording of the statute against the Appellants trying to upgrade the lot.
Mr. McMillan submitted an excerpt from the Environmental Protection Act Sewage Disposal Regulations, specifically subsection 7.(1)(a) as it relates to absorption fields. Subsection 7.(1)(a) states:
ss. 7.(1)An absorption field shall not be located
(a) in an area where the ground water, watercourse or bedrock is less than 4 feet below the ground surface at any time.
He cites this as an additional impediment to the development of the property. However, the same arguments with respect to upgrading would appear applicable to this requirement as well.
While Departmental officials may feel that a sewage system should not be allowed on a site such as this, the Regulations do not forbid it. So long as the specific requirements of a Category II lot, as set out in the Regulations are met, a permit can be issued.
The Appellants contend that there are no limitations to developing the property and that by adding fill and creating a ditch to drain water from the parcel, the lot can meet the requirement of a Category II lot.
In previous appeals before it, the Commission has heard similar proposals for improving a lot. However, as in this case, we heard argument from the Department that the limitations associated with the soils and high water table cannot be overcome simply by adding fill or draining the property.
The Commission has given consideration to the position of both parties. Based on the evidence on soil permeability, water absorption rates and the high seasonal water table, the Commission is convinced that a building permit cannot be issued at this point in time. Whether or not a conventional sewage disposal system will be suitable for the property in question after the addition of fill and drainage ditches is not clear. The "upgrading" required by the Regulations obviously must meet the special circumstances of each case. Clearly there is doubt in the minds of the Department officials that such actions would solve existing problems. However, the Commission is not convinced that such actions could not meet the requirements of the Act.
At the same time, in a previous decision by the Commission on an appeal involving similar circumstances the Commission outlined the importance of a properly working sewage disposal system (Commission Order LA93-01).1 In this decision the Commission stated:
it cannot be denied that one of the fundamental factors that determines livability in a house, no matter the price you pay for the structure and its contents, is the ability to properly dispose of domestic sewage. If the soil cannot support an on-site sewage system the house can easily be considered a major liability by its owner rather than a major asset. A constantly malfunctioning sewage disposal system can impact significantly on the very ability to live and enjoy one's home. Consequently, the Commission believes that when lots are deemed to be unsuitable for an on-site sewage disposal system one should consider very carefully the ramifications of building a home on such a site - not to mention the possible impacts on neighboring lots.
The Commission accepts the submission of Mr. Doucette that his family has not experienced any drainage problems to date. However, based on the evidence as submitted by the Department, including the test pit results and the soils survey information, the Commission is concerned that the characteristics of this particular site - with its high seasonal water table - could make it very difficult, if not impossible, to meet the legal requirements for an on-site sewage system.
In conclusion, the Commission must agree with the denial of the application for a building permit at this time because the lot does not presently meet the requirements of Section 36 of the Planning Act Regulations regarding depth to bedrock and to the water table. However, the Regulations allow for upgrading of the lot and the Appellants may, after upgrading the lot to meet the specifications required in the Regulations, apply again for a building permit. The Appellants must realize a permit will not be issued even then if the upgrading fails to meet the requirements of the Regulations.
5. Disposition
For the reasons given the appeal is denied.
IN THE MATTER of an appeal by Larry and Dolores Doucette against a decision by the Minister of Provincial Affairs and Attorney General, dated September 28, 1995.
Order
WHEREAS Larry and Dolores Doucette have appealed a decision by the Minister of Provincial Affairs and Attorney General, dated September 28, 1995;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on December 10, 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 Act
IT IS ORDERED THAT
1. The appeal is hereby denied.
DATED at Charlottetown, Prince Edward Island, this 24th day of January, 1997.
BY THE COMMISSION:
Linda Webber, Chair
Clayton Bulpitt, 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.
1 Roger and Marie Gillis v. Department of Community and Cultrual Affairs, Island Regulatory & Appeals Commission, Order LA93-01, February 5, 1993.
