Docket LA97017
Order LA97-13
BEFORE THE COMMISSION
on Wednesday, the 19th day of November, 1997.
Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Order
Contents
Appearances & Witnesses
Reasons for Order 1
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses
1. For The Appellant
Witnesses:
Lorna MacKay
William MacKay
2. For The Department
Witnesses:
Donald Walters
Allan Parks
Reasons for Order
1. Introduction
This is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8, by Lorna MacKay (the Appellant) against a decision by the Department of Community Affairs and Attorney General (the Department) to issue a building permit to Donald Corbett (the Developer) to erect a pole barn for hay storage on Provincial Property Number 534867. The subject property is located on the Smith Road at South Granville, Prince Edward Island.
In accordance with the Planning Act and the Planning Act Regulations, the Minister of Community Affairs and Attorney General has the authority to approve building permits pursuant to Section 12 of the Regulations.
On May 24, 1996 Donald Corbett received a building permit (SS-82-96) to erect a pole barn for hay storage on the subject property (Exhibit D3).
This building permit expired and Donald Corbett received a new building permit to erect a hay storage pole barn (SS-139-97) on July 8, 1997 (Exhibit D6).
On July 15, 1997 the Appellant filed a Notice of Appeal with the Island Regulatory and Appeals Commission (the Commission) indicating both the grounds of appeal and the relief being sought (Exhibit A1).
The Commission heard the appeal at a public hearing on October 17, 1997.
2. Discussion
The Appellant's position may be summarized as follows:The Appellant contends that the barn located on the subject property is too close to her property. In the Notice of Appeal and during the hearing, the Appellant and her husband, William MacKay, state that they are concerned with the location of the barn and the effects of cattle grazing and water drainage on their property.
Both the Appellant and William MacKay contend that Mr. Corbett had informed them on several occasions that the barn would be used for cattle storage.
William MacKay states that although he has not observed any cattle in the barn he believes the barn is equipped for cattle storage and will be used for this purpose. Mr. MacKay believes that the reason there are no cattle in the barn presently is because he and his wife complained to the Department and as a result, Donald Corbett is storing his cattle in a rented barn in the area.
While there are no problems with water drainage or cattle at present, the Appellant and her husband contend that this may be a problem in the future.
In addition, the Appellant submits that Donald Corbett had commenced construction of the pole barn after his building permit had expired and before a new permit was issued.
William MacKay also submits that the grain drier located in the barn creates both a disturbing noise and the potential for fire due to the close proximity to their property.
The Appellant contends that they complained to the Department that Mr. Corbett was building a barn without a building permit, that he intended to store cattle in the barn, and that the barn was being built too close to their property.
From the Notice of Appeal, the Appellant requests that the barn be moved over a few hundred feet and built in a down grade so if in the future cattle are stored in the barn, the manure and water mixture can drain properly into a cement tank.
The Department's position may be summarized as follows:
On behalf of the Department, Allan Parks submits that the application made on July 8, 1997 for a building permit to erect a pole barn for hay storage on the subject property complies with all the requirements pursuant to the provisions of the Planning Act Regulations (Exhibit D4).
Mr. Parks states that when complaints were received from the Appellant, he informed Donald Corbett that his building permit had expired on May 24, 1997 and to cease construction until he had obtained a new building permit. Mr. Parks stated that Mr. Corbett applied for and received a new building permit to erect a pole barn for hay storage on July 8, 1997.
Mr. Parks says that he and Donald Walters inspected the site on October 15, 1997 and determined that the barn satisfies the required set back provisions and all other requirements of the Regulations. They observed that the land slopes from the east or the rear of the property and runs to the west or to the road. They also observed a raised grassed berm located at the rear of the subject property, a drainage ditch on the north side of the subject property and a hedgerow located between the two properties which will divert run-off. The Department submitted a composite of photographs and drawings depicting the property (Exhibit D-9).
Mr. Parks contends that if a run-off problem is created as a result of the new construction and the run-off has an impact on the Appellant's property, Mr. Corbett has a responsibility to correct the problem.
Mr. Parks submits that since the application states that the barn is for hay storage and not for cattle, there was no reason for him to forward the application to the Departments of Agriculture and Environment for assessment. Mr. Park states that if in the future cattle are to be stored in the barn, Mr. Corbett would be required to first obtain permission from the Department of Environment (Exhibit D5).
The Department requests that the appeal be denied.
3. Findings
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 both parties as an area of mixed land uses. The Commission heard evidence from the Appellant and her husband that there are approximately 19 homes along the Smith Road, in addition to three farming operations. The Appellant describes the area as residential, while the representative for the Department describes the area as being a typical rural farming area.
According to the application for a building permit, as submitted by the Developer on July 8, 1997, the proposed use of the building is for a hay storage barn. It appears from the Appellant's submission that she is not against the Developer building a barn for hay storage, however, she and her husband believe the barn is too close to their property and are concerned that the barn will be used for the storage of cattle and this will have a detrimental effect on their property.
Although the Appellant did not refer to a specific section of the Regulations, the Commission believes that the Appellant's arguments are of the type that would, in part target section 15 (1) of the Regulations. In part, section 15(1) of the Regulations provides:
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
In reviewing the facts of this case in the light of section 15, the Commission finds that the Minister did not act unreasonably nor did he proceed on the wrong factors.
The evidence provided by the Department's representatives support that section 15 of the Regulations was considered in the decision to approve the building permit. Mr. Parks, in his evidence, stated that the application before him was for the development of a barn for hay storage, and that in considering the provisions of section 15 of the Regulations there was no reason to deny this permit.
The evidence of Mr. Parks was that with the development of a storage building, the Department also relies on section 43(c) of the Regulations which requires a building located outside any town, community or subdivision, to be set back 83 feet from the centre line of the nearest public road. Mr. Parks also refers to section 21 of the Regulations which requires a building with a loading space in the front yard to be set back 150 feet from the centre line of the road. The Department submits that the barn exceeds this requirement as the set back is approximately 300 feet from the centre line of the road. Although the evidence of William MacKay is that the set backs are less than those calculated by the Department, the Commission finds that the set backs of the pole barn satisfy the provisions of the Regulations.
The Commission also recognizes the Appellant's concern regarding the side yard width between the pole barn and her property. With respect to this concern Mr. MacKay pointed out that, by his measurement, the side yard width is 84.5 feet rather that the 150 feet estimated by the Department. While Mr. Parks did not dispute Mr. MacKay's measurement, he did draw attention to section 44(a) of the Regulations which establishes that a side yard is to have a minimum width of fifteen feet. It was Mr. Parks' evidence that whether the actual side yard width in this case is 150 or 84.5 feet, it is substantially in excess of the minimum fifteen feet required by the Regulations. The Commission again finds that the location of the pole barn satisfies the provisions of the Regulations.
The Appellant expressed concern that she had informed the Department of her belief that the pole barn was to be used for cattle and that the Department had not acted on this information. Mr. Parks confirmed that the Appellant and her husband had brought this concern to his attention but also noted that he did take action. Mr. Parks pointed out his hand written comments on the Site Development Inspection Report of July 8, 1997 (Exhibit D5) which includes the following statement:
… I also advised Mr. Corbett that if he ever decided to put in livestock he would be required to first obtain permission from Dept. of Environment, he agreed.
Mr. Parks also testified that he had discussed this concern with Mr. Corbett and Mr. Corbett confirmed that, as he had identified in his Application for a Building Permit and /or a Sewage Disposal System Permit dated July 7, 1997 (Exhibit D4), the pole barn is to be used for hay storage. Mr. Parks stated that he could only deal with the application as submitted and not with what the Appellant and her husband believe might happen in the future.
The Commission does not doubt the sincerity of the Appellant and her husband's concerns on this matter. The Commission does however, believe the Department must and has acted on the factual information before it, which in this case and on this matter is contained in the application for a building permit (Exhibit D4) which is certified by the Developer.
The Commission finds that the Regulations have been satisfied and therefore affirms the decision of the Minister to issue a building permit.
4. Disposition
An Order to deny the appeal will therefore be issued.
IN THE MATTER of an appeal by Lorna MacKay against a decision by the Minister of Community Affairs and Attorney General dated July 8, 1997.
Order
WHEREAS
Lorna MacKay (the Appellant) has appealed a decision made by the Department of Community Affairs and Attorney General, dated July 8, 1997;AND WHEREAS
the Commission heard the appeal at a public hearing conducted in Charlottetown on October 17, 1997 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 THAT1. The appeal is hereby denied.
DATED
at Charlottetown, Prince Edward Island, this 19th day of November, 1997.BY THE COMMISSION:
Wayne D. Cheverie, Q.C., ChairGinger Breedon, Vice-Chair
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.