Order LA98-04 - LA98002 - Planning Appeal - Douglas Doucette v. Department of Community Affairs and Attorney General (Mar. 25/98)

Docket LA98002
Order LA98-04

IN THE MATTER of an appeal by Douglas Doucette against a decision by the Department of Community Affairs and Attorney General, dated January 20, 1998.

BEFORE THE COMMISSION

on Wednesday, the 25 day of March, 1998.

Ginger Breedon, Vice-Chair
Clayton Bulpitt, Commissioner
Weston Rose, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Reasons for Decision

4. Disposition
Order

Appearances & Witnesses

1. For The Appellant

Represented By:
Robert Morrissey, MLA

Witness:
Douglas Doucette

2. For The Department

Witnesses:
Donald Walters
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 Douglas Doucette (the Appellant) against a decision by the Department of Community Affairs and Attorney General (the Department) to deny an application to subdivide a lot from Parcel #754713 located at Bloomfield.

On December 30, 1997 the Appellant made application to subdivide a lot from Parcel #754713 for a single family dwelling (Exhibit D2).

On behalf of the Minister, Gerald McMillan notified the Appellant by letter dated January 20, 1998 that his subdivision application was denied because, "Your proposed lot is classified as a Category 3 lot due the poor soil permeability and a high water table." Mr. McMillan further stated that "...we have no alternative but to deny your application pursuant to Sections 19, 25, and 37 of the Planning Act Regulations." (Exhibit D6)

On February 9, 1998 the Appellant filed a Notice of Appeal with the Island Regulatory and Appeals Commission (the Commission) (Exhibit A1).

The Commission heard the appeal on March 5, 1998 in Charlottetown.

2. Discussion

The Appellant

The Appellant's position may be summarized as follows:

Robert Morrissey, on behalf of the Appellant, states that the Appellant wishes to subdivide the subject parcel to create a lot for his brother-in-law. The Appellant wishes to give his brother-in-law a portion of his land because his brother-in-law is unable to afford property in the area, given his financial situation.

The Appellant states that he began to construct a storage building on the property but decided to allow his brother-in-law to convert it into a small house. The Appellant states that his brother-in-law has invested approximately $6,000.00 in renovations to the building.

In a letter to the Commission dated February 9, 1998 the Appellant states that he has lived on the subject property for the past 10 years and there has never been a problem with his septic system or water problems in the spring. He also states that "...when the well for the lot in question was dug by a professional well digger he informed me that the ground was dry to a dept [sic] of 30 feet." (Exhibit A2). The Appellant expanded on these points in his testimony at the hearing.

During the hearing the Appellant presented written statements from the owners of two neighbouring properties who state that they have not had any problems since they installed their systems in 1973 (Exhibit A3).

During the hearing, Mr. Morrissey questioned the reliability and accuracy of the evidence submitted by Gerald McMillan who carried out the test pit evaluation on the proposed lot, and questioned why the Department of Fisheries and Environment did not inspect the site. Mr. Morrissey also questioned whether a decision on the ability of the soil to handle the water load from a septic system should not have to be made by someone trained in that area such as a hydrologist.

In conclusion, the Appellant argues that the lot is suitable for development and requests the Commission to allow him to subdivide the property as proposed.
The Department

The Department's position may be summarized as follows:

Gerald McMillan, representative of the Minister, states that Mr. Doucette received a building permit in 1996 to construct a private storage building on the subject property (Exhibit D10). This type of structure would be an accessory building and would not have a septic system. He states the building was later renovated into a small dwelling but the Appellant was refused electrical service because he did not have the appropriate building permit. Mr. McMillan states that he advised the Appellant to make application to subdivide the subject parcel.

On January 5, 1998, as part of the subdivision review process, Gerald McMillan assessed two test pits on the proposed site 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 10 to 12 inches of soil is grey;

the soil layer between 1 foot and 3 feet is impervious; and

the site is flat and therefore there is no opportunity for surface water to drain away.

According to Exhibit D3, Mr. McMillan states that on January 6, 1998 he discussed the proposal with Delbert Reeves of the Department of Fisheries and Environment, who supported his assessment that the subdivision request should not be approved for the property.

Mr. McMillan also submits that he reviewed soil survey maps for the general area in which the proposed lot is located and determined that the soils in this area are unsuitable for the proposed development (Exhibit D8).

In a memorandum to Don Walters dated January 6, 1998, Mr. McMillan advised "that the test hole which was dug on the site indicates that the water table is at or near the surface and the lot would be classified as a Category 3 lot". Mr. McMillan also advised that due to the shape of Mr. Doucette's property and the location of his existing mobile home, it would be impossible to subdivide a lot that meets the requirements of section 37 of the Planning Act Regulations (Exhibit D4).

The Department explained that when reviewing an application, every attempt is made by the Department to provide applicants with all other possible options. In this case, there were no affordable options because of the limitation of the proposed lot – the existence of a high water table. However, the Department stated that the Appellant could engage a consultant to develop an alternative system. While this is an option that an applicant may consider, the Department stressed that it can be an expensive process and there is no guarantee that the consultant's proposal will be accepted by the Department of Fisheries and Environment.

The Department concludes that the proposed lot is a Category 3 lot and cannot support an on-site sewage disposal system and cannot be upgraded to a Category 2 lot because of the presence of a high water table. Furthermore, the proposed lot cannot meet the requirements of section 37 of the Regulations. The Department states that they had no alternative but to deny the application pursuant to the provisions of sections 19, 25, and 37 of the Planning Act Regulations.

The Department requests 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 the Commission's decision are as follows:

The Commission is not a lawmaker and is bound by the same regulations, as is the Department. In this case, the Commission is bound by the Planning Act Regulations, which set out the necessary requirements for subdivision and development.

The following sections of the Regulations are relevant to this case:

Section 19 states:

No person shall commence the construction or installation of any septic tank or other means of sewage disposal unless the construction or installation conforms to the requirements imposed by the Sewage Disposal Regulations, made under the Environmental Protection Act R.S.P.E.I. 1988, Cap. E-9.

Section 25 states:

(1) Any person wishing to subdivide land shall show to the satisfaction of the Minister that all land to be subdivided and the subdivision thereof is suited to the purpose for which the subdivision is intended having regard to

(a) topography and physical conditions of the land;

(b) soil characteristics;

(c) surface drainage;

(d) potential flooding, subsidence and erosion;

(e) location, convenience and safety of access;

(f) availability, adequacy and the economical provision of utilities and services;

(g) existing use of land in the immediate vicinity;

(h) segregation of traffic flow as between main and minor thoroughfares;

(i) the dimension, shape, orientation and accessibility of each lot of land; and

(j) the intended use of the land.

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

(a) does not conform to these regulations;

(b) would be detrimental to the convenience, health or safety of occupants in the vicinity or the general public;

(c) would precipitate premature development or unnecessary public expenditure, or would place undue pressures on the municipality or the province to provide services; or

(d) would result in undue damage to the natural environment.

. . . . .

Section 36 states:

(1) Lots shall be categorized according to the following:

….

(c) Category 3, where the lot has a depth of permeable natural soil less than 1 ft./.3 m, and where the depth to bedrock and the depth to the maximum water table elevation is less than 4 ft./1.22m.

(2) Except where such a lot is serviced by a central sewerage system, development of a Category III lot 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).

Section 37 states:

(1) No approval or permit shall be granted for the subdivision of a lot for residential or non-residential use unless the lot conforms with the requirements set out in Table 1 and Table 2 respectively.

(2) With respect to the minimum circle diameter requirements set out in column (f) of Table 1 and column (e) of Table 2, where applicable, the space encompassed by the circle shall be in a location on the lot which will accommodate an on-site sewerage system.

. . . . .

During the hearing the Department stated that they were also bound by section 15 of the Environmental Protection Act Sewage Disposal Regulations which states:

15. Notwithstanding any other provisions of these regulations, the authority having jurisdiction may permit the construction, reconstruction or installation of a type of sewage disposal system not prescribed herein if it is satisfied that the system to be used is satisfactory for the treatment and disposal of the sewage it is to receive.

The Commission heard the submission of Mr. Doucette and read the testimony of his neighbours who, to date, have not experienced any water or septic system problems. The Commission accepts the submission of Mr. Doucette and his neighbours that they have not experienced such problems. However, the Commission also accepts the evidence submitted by the Department, including the test pit analysis and the soil survey information, which establish that, in the case of the proposed new lot, the soil conditions do not meet the requirements for an on-site sewage system.

While Mr. Morrissey challenged Mr. McMillan's assessment of the site, and both he and Mr. Doucette provided examples of Mr. Doucette's and neighbouring property owners not having any problems with their existing septic systems, they did not provide the Commission with any substantive evidence that Mr. McMillan's assessment of the test pit was wrong.

Based on the evidence on soil conditions, and the high seasonal water table, the Commission believes that the lot cannot presently meet the requirements of section 36 of the Planning Act Regulations and therefore the appeal must be denied.

The Appellant questioned why the Department of Fisheries and Environment did not inspect the site upon receiving the results from the Department. The Commission heard from the Department that the matter was discussed with a representative from the Department of Fisheries and Environment who agreed with the Department's conclusions based on the site evaluation and considered it unnecessary for them to further inspect the site. In this case, it is the Commission's opinion that the Department followed a reasonable process by consulting with the Department of Fisheries and Environment before issuing a decision. If the Department's review remained inconclusive then the Commission would expect the Department of Fisheries and Environment to conduct an independent analysis of the site. However this was not the case with this site.

Both Mr. Walters and Mr. McMillan stated during the hearing that the Department of Fisheries and Environment is reviewing a number of alternative systems for sewage disposal which may be used in situations such as this where the soil has limited capabilities to sustain a traditional system. In the future Applicants may be able to use alternative systems to enable them to overcome such site limitations.

However, notwithstanding the fact that the subject lot does not presently meet the requirements of section 36 of the Planning Act Regulations regarding depth of permeable, natural soil and depth to bedrock and to the water table, the Commission also finds that the lot fails to meet the minimum lot size requirements pursuant to the provisions of section 37 of the Planning Act Regulations.

According to the Department's evidence (Exhibit D11 and D12) the lot cannot be subdivided as it fails to satisfy the minimum lot size requirements to allow a 175 ft. diameter circle within the boundary of the existing and the proposed lot.

The Appellant provided no arguments to dispute the Department's evidence on this matter.

For this reason the appeal must also be denied.

As previously noted, the Commission is bound by the Planning Act Regulations which clearly establish the necessary conditions for an on-site sewage disposal system. The Departments evidence shows that the necessary conditions are not met on the site in question in this appeal.

During the hearing, the Appellant expressed his wishes to provide his brother-in-law with an affordable property. The Appellant also told the Commission that his brother-in-law has already invested $6,000.00 in renovations to the building located on the proposed lot in order to convert the building into a small dwelling. The Commission sympathizes with the situation in which the Appellant and his brother-in-law find themselves. While the Appellant's situation is compelling and unfortunate, the Commission is bound by the Planning Act Regulations and does not have any grounds to overturn the decision of the Department and allow the appeal.

4. Disposition

For the reasons given the appeal is denied.

Order

WHEREAS Douglas Doucette has appealed a decision of the Department of Community Affairs and Attorney General, dated January 20, 1998;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on March 5, 1998 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 denied;

DATED at Charlottetown, Prince Edward Island, this 25 day of March, 1998.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair

Clayton Bulpitt, Commissioner

Weston Rose, 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.