Docket  LA97035
Order  LA98-07

IN THE MATTER of an appeal by Wendell Deagle against a decision of the Department of Community Affairs and Attorney General, dated November 19, 1997.

BEFORE THE COMMISSION

on Thursday, the 9th day of April, 1998.

Wayne D. Cheverie, Q.C., Chair
Arthur Hudson, Commissioner
Norman Gallant, Commissioner 

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Preliminary Matters

3. Substantive Matters

4. Findings

5. Disposition

Order

Appearances & Witnesses

1. For The Appellant

Witness:
Wendell Deagle

2. For The Department

Witnesses:
Donald Walters
Niall MacKay
Alan McLennan

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 Wendell Deagle (the Appellant) against a decision of the Department of Community Affairs and Attorney General (the Department), dated November 19, 1997 to deny an application to subdivide one lot from Parcel #735571 located at Souris West.

On August 12, 1997 the Appellant made application to subdivide one lot from Parcel #735571 for a single family dwelling (Exhibit D1).

On behalf of the Minister, Niall S. MacKay notified the Appellant by letter dated November 19, 1997 that his subdivision application was denied pursuant to subsection 12(2) of the Planning Act Coastal Area Regulations (Exhibit D5)1.

On December 15, 1997 the Island Regulatory and Appeals Commission (the Commission) received the Appellant's Notice of Appeal (Exhibit A1).

Upon receipt of the Notice of Appeal, Commission staff notified the parties involved that the time for filing an appeal may have expired as it would appear the Notice was filed beyond the 21 day appeal period pursuant to the provisions of Section 28 of the Planning Act and as a result the Commission may not have the jurisdiction to hear the appeal. Both parties filed submissions with the Commission pertaining to this issue.

The Commission heard the appeal on March 19, 1998 in Charlottetown.

2. Preliminary Matters

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)

The submission filed by the Appellant states that he did not receive the letter from the Department dated November 19, 1997 until December 2, 1997 because of the mail strike (Exhibit A2). The Notice of Appeal filed by the Appellant dated December 3, 1997 was not received by the Commission until December 15, 1997 (Exhibit A1). To clarify the record, at the request of the Commission, Canada Post Corporation confirmed that there was a mail strike from November 20, 1997 to December 4, 1997 (Exhibit C1).

The Commission acknowledges that the disruption caused by the mail strike may have delayed receipt of the Department's letter by the Appellant and consequently delayed receipt of the Appellant's Notice of Appeal by the Commission. The Department indicated that it had no objections to the appeal being heard by the Commission.

On this matter, the Commission determined that it has jurisdiction and proceeded to hear the substantive matters of the case.

3. Substantive Matters

The Appellant

The Appellant's position may be summarized as follows:

Wendell Deagle states that the parcel he wishes to subdivide was at one time part of his family's farm (parcel #735571). His father deeded him the remainder of the farm property after subdividing parcel #735571 and creating a number of smaller lots. Mr. Deagle also owns a parcel located adjacent to the proposed lot. He originally built a cottage on this parcel but then in 1984, replaced the cottage with a permanent dwelling in which he resides today.

Referring to Exhibit D2, Mr. Deagle showed that to the right of the proposed lot is his home and to the left is a pond known as Sheep Pond which he describes as being stagnant. The lot fronts on a paved highway. To the rear of the proposed lot is the remainder of the parcel #735571.

The Appellant advised that when he built his house in 1984, he had intentions of developing the adjacent land. However, he contends that he was unaware of the regulations that came into effect in 1993 which restricted development on the site because of the existence of a secondary sand dune system.

Mr. Deagle argues that the proposed lot should be developed because it is a valuable piece of land, is sheltered by a tree line and is accessible because it fronts on a paved road. He further submits that by developing the site, it would be a natural extension of current development in the area.

The Appellant states that although he does not dispute the evidence submitted by the Department, he contends that the sand dunes located on the proposed lot are moving inland and would disappear if the lot was developed.

Mr. Deagle believes that the development of the lot would have no environmental impact and would only add to the subdivision in general. The Appellant states that although he supports the need for regulations to protect the environment he believes that the regulations must be interpreted in light of what has already been developed in the general area.

Mr. Deagle submits that his application was for a lot measuring 200 feet by 200 feet in area; however, he contends that the lot size could be increased in order to satisfy the Regulations.

The Appellant requests the Commission allow the appeal and approve his application to subdivide the property as proposed.

The Department

The Department's position may be summarized as follows:

Donald Walters, on behalf of the Department states that on November 6, 1997 Niall MacKay, a Property Development Officer with the Department conducted a pre-development inspection and determined that the proposed lot contained sand dunes (Exhibit D3). The policy of the Department, Mr. Walters explained, is to send such an application to the Department of Fisheries and Environment for evaluation in order to confirm the existence of dunes and to determine the class of dunes present on the site.

Mr. Walters submits that the Department of Fisheries and Environment determined that the dune was a secondary sand dune and recommended against development in the area (Exhibit D4).

Mr. Walters submits that subsection 12(1) of the Planning Act Coastal Area Regulations permits the subdivision of land consisting of primary and secondary dunes for five lots or less, where each lot has an area of more than two acres in size. The application before the Department and in turn, the Department of Fisheries and Environment was for a lot with dimensions of 200 feet by 200 feet, which is less than two acres in size.

During the hearing Alan McLennan, on behalf of the Department of Fisheries and Environment gave evidence that he inspected the site and concluded that the proposed lot contained secondary sand dunes. He explained that if the site was developed, a natural area would be lost which goes against the intention of the Regulations. He states that because this site contains secondary sand structures, it would most likely be unsuitable for an on-site sewage disposal system.

The Department states that because the proposed lot contains secondary sand dunes and is less than two acres in size, the application was denied under subsection 12(1) and section 28 of the Planning Act Coastal Area Regulations.

The Department requests that the appeal be denied.

4. Findings

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, 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, 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.

In this case, the Commission is bound by the Planning Act Coastal Area Regulations, which set out the necessary requirements for subdivision and development in coastal areas.

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

Section 12 states:

(1) Except for subdivisions of five lots or less each having an area of more than two acres, no person shall subdivide lands consisting of primary or secondary sand dunes or on baymouth barrier sand dunes.

(2) Any person creating a subdivision of five lots or less, each having an area of more than two acres, on lands containing primary and secondary dunes, shall ensure that each lot is of an appropriate size and configuration to enable the construction of structures not less than 100 feet from such sand dunes.

Section 28 states:

s.28 No building or structure shall be constructed, erected, or placed

(a) on any primary or secondary sand dune, or a baymouth barrier sand dune; or

(b) within 100 feet of a migrating primary or migrating secondary sand dune.

The Commission has heard the evidence on behalf of the Department of Community Affairs and Attorney General and the representative of the Department of Fisheries and Environment that the proposed lot is located in an area containing secondary sand dunes and is less than two acres in size.

The Appellant did not dispute the evidence provided by the Department nor did he provide the Commission with any substantive evidence to suggest to the Commission that the Department's assessment was wrong.

Based on the evidence that the lot contains a secondary sand dune and is less than two acres in size, the Commission finds that the lot cannot presently satisfy the requirements of sections 12 and 28 of the Planning Act Coastal Area Regulations and therefore, the appeal must be denied.

As a result, the Department's decision is affirmed.

5. Disposition

For the reasons given the appeal is denied. 

Order

WHEREAS Wendell Deagle appealed a decision of the Department of Community Affairs and Attorney General, dated November 19, 1997;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown March 19, 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 9th day of April, 1998.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair

Arthur Hudson, Commissioner

Norman Gallant, 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    It should be noted that during the hearing Mr. MacKay clarified that in the letter of denial, subsection 12(1) should have been referenced and not subsection 12(2).