Order LA97-06 - LA96031 - Planning Appeal - Carmen Simmons v. Brackley Community Council (May 2, 1997)

Docket LA96031
Order LA97-06

IN THE MATTER of an appeal by Carmen Simmons against a decision by the Brackley Community Council dated November 20, 1996.

BEFORE THE COMMISSION

on Friday, the 2nd day of May, 1997.

John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
Clayton Bulpitt, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Preliminary Issue

4. Findings

5. Disposition

Order

Appearances & Witnesses

1. For the Appellant

Witnesses:
Carmen Simmons
Frank Delph - Surveyor Technician
Leo MacLeod

2. For the Brackley Community Council

Counsel:
Charles Keizer

Witnesses:
Sheila MacKinnon
Andrew Palmer

Reasons for Order

1. Introduction

This is an appeal under the Planning Act (the Act), R.S.P.E.I. 1988, Cap. 8, by Carmen Simmons (the Appellant) against a decision by the Brackley Community Council (the Council) pertaining to the location of a storage building on property owned by Andrew Palmer and located at Brackley.

The Appellant filed a Notice of Appeal with the Commission on December 4, 1996 (Exhibit A1).

The Commission commenced the appeal hearing on February 18 and reconvened on March 14, 17 and April 1, 1997.

2. Discussion

The Appellant

The position of the Appellant may be summarized as follows:

According to the Notice of Appeal, the Appellant takes the position that the storage building located on property owned by Andrew Palmer fails to meet the provisions of the Community of Brackley Zoning and Subdivision Bylaws. Specifically, the Appellant claims that the storage building fails to meet the side yard setback provisions and the setback provisions from a water course and embankment with a slope greater than 30 degrees.

The Appellant states that he brought this issue of non-compliance to the attention of Council sometime during the month of September 1996 and requested Council to review the matter. The Appellant submits that Council made a "final" decision on November 20, 1996 regarding the non-compliance, deciding that the storage building complied with the provisions of the bylaws.

It is this decision that the Appellant is appealing.

The Council

The position of the Council may be summarized as follows:

At the commencement of the hearing on February 18, 1996, legal counsel for the Council raised a preliminary issue. The issue is that the decision of Council regarding the location of the storage building was made and the response was conveyed to the Appellant prior to November 20, 1996. The Council argues that as the Appellant filed a Notice of Appeal on December 4, 1996, the appeal was filed beyond the 21 day appeal period. The Community submits that the Commission is without jurisdiction to hear this matter.

The Council submits that if the Commission finds that it does have jurisdiction to hear the appeal, it should be aware that they measured the location of the storage building after receiving an inquiry from the Appellant and determined that the location of the storage building complied with the provisions of the bylaws.

The Council argues that the Commission should deny the appeal if it decides it has jurisdiction to consider the matter.

3. Preliminary Issue

In the matter of the issue of jurisdiction, the Commission, during the hearing found that Council made a decision on November 20, 1996 and that Mr. Simmons properly filed an appeal against that decision within the 21 day appeal period. Therefore, the Commission decided that it has jurisdiction to hear this appeal.

4. Findings

The Appellant states in his Notice of Appeal that his grounds for appeal are based on Part IV. Section 2 of the Bylaws - the storage building constructed by Andrew Palmer does not meet the side yard set back requirements.

Part IV. Section 2 states:

Excepting land used for agricultural or livestock purposes, lots, buildings and structures shall conform with the following standards:
…
Side yard width, minimum 15 feet
…

The appellant also states that the location of the building on the lot does not comply with Part IV. Section 20. which states:

Notwithstanding anything contained in this part, no person shall erect any building or structure in the Community:

a). within seventy-five (75) feet of the mean high watermark of any river, stream or watercourse located within or bordering on the legal boundaries of the Community; or

b). within seventy-five (75) feet of any embankment, excluding any highway embankments, the slope of which is greater than 30 degrees from horizontal.

On the first issue of whether the storage building met the side yard set back provisions, the Commission heard evidence from Frank Delph who conducted a survey of the property in February 1997. Mr. Delph submits that the storage building was set back 15.5 feet from the property line - measured from the back of the storage building and 15 feet from the property line - measured from the front of the storage building.

These measurements were not contested by either party.

According to the provisions of subsection IV. 2 of the Bylaws, the required side yard width is fifteen (15) feet.

Based on the evidence, the Commission finds that the location of the storage building on Mr. Palmer's property complies with the provisions in the Bylaw for the setback of an accessory building from the side lot line.

On the second issue pertaining to the location of the storage building relative to the water course and slope of the embankment, the Appellant contends that Council did not comply with the provisions of Part IV. Section 20. of the Bylaws when it issued the permit to Mr. Palmer.

The Commission, after hearing considerable evidence from both parties and Mr. Delph, concludes that there is no water course or embankment with slope greater than 30% which would require the setback provisions of Part IV. Section 20 of the Bylaws to be implemented.

For the above reasons, the Commission hereby denies the appeal.

5. Disposition

An Order denying this appeal will therefore be issued.

Order

WHEREAS the Appellant appealed a decision made by the Brackley Community Council on November 20, 1996;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on February 18, March 14, 17 and April 1, 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 denied.

DATED at Charlottetown, Prince Edward Island, this 2nd day of May, 1997.

BY THE COMMISSION:

John L. Blakney, Vice Chair
Clayton Bulpitt, 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.