Docket LA96013
Order LA97-04IN THE MATTER of an appeal by William V. Doucette against a decision of the Minister of Provincial Affairs and Attorney General, dated April 4, 1996.
BEFORE THE COMMISSION
on Monday, the 7th day of April, 1997.
John L. Blakney, Chair
Anne McPhee, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Reasons for Decision
4. Disposition
Order
Appearances & Witnesses
1. For Appellant
Witness:
William V. Doucette2. For Minister
Witness:
Donald Walters, Chief Property Development Officer
Reasons for Order
1. Introduction
This is an appeal under the Planning Act, R.S.P.E.I. 1988, Cap. P-8, by William V. Doucette (the Appellant) against a decision of the Minister of Provincial Affairs and Attorney General (the Minister) to deny him a building permit for a single family dwelling on Provincial Property Number 235705, located on Route #6 in the Community of Rusticoville.
On March 22, 1996 the Appellant submitted an application for a building permit for approval (Exhibit D-1).
On behalf of the Minister, Garth Carragher, Property Development Officer, notified Mr. Doucette by letter dated April 4, 1996, that his application was denied because "…there is no point along the entire frontage of parcel #235705 that can satisfy the minimum sight distance requirements as specified in Schedule G of the Roads Act Highway Access Regulations" (Exhibit A-1).
On April 15, 1996 the Appellant filed a Notice of Appeal with the Island Regulatory and Appeals Commission (the Commission).
The Commission commenced the appeal at a public hearing conducted in Charlottetown on June 25, 1996.
At the hearing on June 25, 1996 representatives of the Minister raised a preliminary issue concerning whether the Commission had jurisdiction to hear the appeal. The Commission later received further submissions from Don Walters on behalf of the Minister on August 23 and September 5, 1996 and a submission from John McMillan, legal counsel for the Appellant on December 3, 1996.
On March 13, 1997 the Commission issued Order LA97-03 in which the Commission denied the Department's preliminary motion to dismiss the appeal, and found that it does have jurisdiction to hear this appeal.
The Commission heard the substantive matters of this appeal on March 19, 1997 in Charlottetown.
2. Discussion
The Appellant
The Appellant's position may be summarized as follows:
Mr. Doucette states that upon purchasing the property in 1966, the parcel was immediately subdivided into two lots. His brother acquired one of the lots and built a dwelling soon thereafter. Mr. Doucette retained the second lot (the subject property) and the property has remained vacant.
In the year 1976 or 1977, the Appellant recalls that the Province realigned Route #6 vertically and horizontally. In so doing, the Province expropriated a portion of his property in front and replaced it with an equal amount at the rear.
Mr. Doucette states that in 1988, the Province's highway access regulations changed and as a result, his property now does not meet the sight distance standards required for an entrance way. The Appellant states that he conducted his own profile of the property and agrees with the Department's findings that the property does not have adequate sight distance.
The Appellant submits that many of the surrounding properties that were developed after 1966 have existing driveways that would not meet today's standards (Exhibit A-6). After his application was refused, the Appellant states that he had discussions with the Department regarding the possibility of using the driveway of the adjacent property located to the north with the permission of the property owner. However, Garth Carragher inspected the property and determined that it had an unsafe access (Exhibit A-1).
The Appellant contends that the regulations which came into effect in 1988, have rendered his property useless and valueless. He seeks to have the decision of the Minister overturned. He also requests that the Commission give him a recommendation on how he can proceed.
The Minister
The Minister's position may be summarized as follows:
Donald Walters, representative of the Minister, states that the decision to deny the building permit was made in accordance with section 15.(2) of the Planning Act Regulations.
Mr. Walters submits that the Roads Act Highway Access Regulations designate Route #6 as a Collector Highway and Schedule G of the Roads Act Highway Access Regulations requires that the minimum safe stopping distance for a Collector Highway is 140 metres. Mr. Walter also submits that the Site Development Inspection Report (Exhibit D-2) supports that there is no point along the complete frontage of the subject property that meets the minimum requirement.
Mr. Walters further submits that prior to 1988 the Province approved entrance ways for existing parcels at the most safest location possible. He contends that if Mr. Doucette had applied for an entranceway prior to 1988, he may have received approval.
Mr. Walters finds this not to be an unusual situation. Throughout the province, there are a number of lots that would not be approved for development because they cannot meet the sight distance standards. As a result, Mr. Walters indicates that the Department encourages the public to consult with the Department before purchasing a lot in order to avoid an unfortunate situation.
The Department recommends that the appeal be denied.
3. Reasons for Decision
After giving careful and full consideration to the evidence submitted in this case, it is the decision of the Commission to deny the appeal. The reasons for this decision are as follows:
The Commission, as an appellate body has the same decision making power as the tribunal at first instance i.e. the Minister, within the regulations that existed at the time of an application. The Commission does not have absolute powers and is bound by the law.
On any appeal and in this case, the Commission has the power to hear the evidence and arguments as presented by both parties and decide whether to allow the appeal or dismiss it based on the evidence and arguments presented and within the applicable regulations.
As to the more substantive matters of this case, it is an agreed upon fact that at no point along the frontage of the subject property is there adequate sight distance, pursuant to the sight distance standards as set out in Schedule G of the Roads Act Highway Access Regulations. It is the Department's evidence that the range of sight distance along the frontage of the lot is 105 metres to 113 metres. The Appellant presented a profile of the property (Exhibit A-5) and stated that he agrees with the Department's findings.
In deciding this matter, the Commission is guided by section 15. (2) of the Planning Act Regulations, which pertains to sight distance.
Section 15. (2)
No building permit shall be issued for any parcel of land where the entrance way does not conform to the sight distance standards for entrance ways set out in the Roads Act Highway Access Regulations.
And whereas Schedule G of the Regulations provides sight distance standards for access driveways along Collector Highways. It is the Department's evidence that Route #6 is designated as a Collector Highway under the Roads Act Highway Access Regulations and requires a minimum safe stopping sight distance of 140 metres.
Based on the evidence of the Department, and confirmation of the actual site distance by the Appellant, the Commission finds that there is no point along the road frontage of the property where an entrance way would be safe in accordance with the standards set out in the Regulations.
Even though the Appellant contends that other properties in the area have received approval for entrance ways since 1966, the Commission finds that pursuant to section 15.(2) of the Planning Act Regulations the enforcement of the minimum sight distance requirements is imperative and therefore no building permit can be issued. There are no statutory or legislative provisions that give the Commission the authority to vary any regulation as this would be tantamount to the Commission making its own law which clearly it cannot do.
4. Disposition
For the reasons stated the appeal is hereby dismissed.
Order
WHEREAS William V. Doucette (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), in written notice dated April 4, 1996, against a decision of the Minister of the Department of Provincial Affairs and Attorney General;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on March 19, 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 THAT
1. The appeal is hereby dismissed.
DATED at Charlottetown, Prince Edward Island, this 7th day of April, 1997.
BY THE COMMISSION:
John L. Blakney, Vice-Chair
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.