Docket LA98003
IN THE MATTER of an appeal by Donald Stewart and Elizabeth Stewart against a decision by the Minister of Community Affairs and Attorney General, dated February 17, 1998.
Order LA98-09BEFORE THE COMMISSION
on Thursday, the 2nd day of July, 1998.
Wayne D. Cheverie, Q.C., Chair
Weston Rose, Commissioner
Elizabeth MacDonald, Commissioner
Order
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Decision
4. Disposition
Order
Appearances & Witnesses 1. For The AppellantsCounsel:
Horace B. Carver, Q.C.Witnesses:
Donald Stewart
Elizabeth Stewart
John Ives
2. For the Minister
Counsel:
Ruth DeMoneWitness:
Don Walters
3. For the Developer
Not present or represented.
Reasons for Order
1. Introduction
This matter comes before the Island Regulatory and Appeals Commission (the Commission) as a result of the exercise of authority granted to the Minister of Community Affairs and Attorney General (the Minister) pursuant to the Planning Act R.S.P.E.I. 1988 Cap P-8 (the Act) and the Planning Act Regulations (the Regulations). In particular, the Minister has the authority to approve building permits pursuant to Section 12 of the Regulations, which permit includes changing the location of any building or structure, or, moving or relocating any building or structure.
On January 25, 1998, Wayne Dompierre (the Developer), applied for development approval to change the location of a building, i.e. to move a building from parcel number 669622 to parcel number 142117 (Exhibit R7). This application resulted on February 17, 1998 in the issuance of a building permit to Ms. Dompierre to relocate a private storage building (Exhibit R1).
On March 4, 1998, Donald Stewart and Elizabeth Stewart (the Appellants) appealed the decision of the Minister on February 17, 1998 to issue the building permit to Ms. Dompierre. That appeal was filed with the Commission pursuant to Section 28 of the Act and after proper public notice, the Commission heard the appeal on May 26, 1998 in Charlottetown.
2. Discussion
The Appellants
The Appellants' position may be summarized as follows:
In their Notice of Appeal, the Appellants take the position that the building permit issued to the Developer was issued contrary to the Planning Act and the Planning Act Regulations. In particular, the Appellants submit that the Developer failed to file a proper application with the Minister pursuant to Section 23 of the Planning Act Coastal Area Regulations, and therefore the Minister should not have approved the application. The Appellants go on to suggest that the Developer has failed to certify that she will develop this site in accordance with the requested site plan.
The Appellants state that the location of the building would be detrimental to the convenience, health and safety of occupants or residents in the vicinity of the proposed building, and it would result in undue damage to the natural environment. In addition, the proposed location of the building would have a detrimental impact on surrounding land uses and/or values.
The Appellants also argue that the location of the building fails to comply with the minimum required set backs for side yards, front yards and rear yards. Further, the Developer has not provided satisfactory evidence to the Minister that she is the sole owner of the building which is to be moved to land solely owned by the Developer. The Appellants suggest that the Developer has not satisfactorily explained how she proposes to relocate the building from parcel number 669622 to parcel number 142117, and it is the Appellants' further contention that the Developer does not have legal access to parcel number 669622 and therefore is unable to move the building.
The Appellants referred the Commission to the Planning Act Regulations, Part II, Interpretation, and stated that the permit was issued for a "private storage building" which is not an allowable use under the Regulations.
In support of their case, the Appellants called Mr. John Ives to testify on their behalf. Mr. Ives, a real estate agent and licensed property appraiser, gave evidence that it was his opinion that given the proposed location of the building, it would detract from the Appellants' view and therefore would diminish the aesthetic qualities of their property which in turn would impact on the value of the property.
In all, the Appellants request that the Commission allow the appeal and rescind building permit C-015-98 issued to the Developer.
The Minister
The Minister takes a contrary view to the arguments advanced by the Appellants, and his position may be summarized as follows:
The Minister contends that the application for a building permit was approved because it complied with the relevant provisions of both the Act and the Regulations. In doing so, the Minister acknowledged that there is a problem with access to the right-of-way of property number 669622 and that is why the building is being moved. However, in the opinion of the Minister, access to this right-of-way is not a condition precedent to the issuance of a building permit.
It is the Minister's position that there is no protection for viewscapes under the Regulations and therefore, the permit could not be denied on that basis. In short, the Minister submits that the present case involves the simple matter of relocating a private storage building from one lot to an adjacent lot; that a detailed site plan is not required; and that the Commission ought to deny the appeal and uphold his decision to issue the building permit.
The Developer
The Developer did not appear at the hearing nor did the Developer have anyone represent her at the hearing.
3. Decision
After careful consideration of the evidence and an equally careful review of the relevant law, the Commission has come to the conclusion that the present appeal must be allowed. In reaching this conclusion, though, the Commission commends Mr. Don Walters, witness for the Minister, for his generosity of spirit in dealing with the Developer's application. For reasons hereinafter set out, it appears to the Commission that Mr. Walters did not have the discretion which he thought he possessed when dealing with the application, but this in no way diminishes his obvious intent to guide this particular member of the public through the regulatory regime required to obtain a building permit. It is not Mr. Walters' fault that the Regulations which he is charged with administering simply do not allow him to deviate from the legislative requirements.
While the Appellants advanced a number of grounds and arguments in support of their submission that their appeal should be allowed, the Commission has restricted its decision to the interpretation and application of Section 23 of the Coastal Area Regulations under the Planning Act, as well as Section 15 of the Planning Act Regulations.
Section 23 of the Coastal Area Regulations
The Appellants argued that Section 23 of the Coastal Area Regulations applied to the present case, and Mr. Walters for the Minister, agreed. Section 23 states as follows:
However, Mr. Walters qualified his agreement by saying that, given the fact that the Developer was simply moving a storage building, it was not reasonable to require full compliance with Section 23. Unfortunately, Section 23 is mandatory and it requires the inclusion of certain specific information in the application. Mr. Walters agrees with this but suggests that in this particular case it was unreasonable and unnecessary to require that information. In fact, Mr. Walters agreed that the present application was rare, if not unique, in that a seemingly simple application to move a building from one property to another would be caught within the geographical parameters of the Coastal Area Regulations. Perhaps a case such as the present was not contemplated by the Regulations, but in any event, it is clear that those Regulations do apply, and that Section 23 creates a condition precedent to granting a permit and all the provisions of that section need to be fulfilled.a. the true shape and dimensions of the parcel on which the building or structure is to be situated;
b. the proposed location of any buildings on the property, and the distance from the property boundaries;
c. a key map, orthophoto or property map, showing the general location of the property;
d. the location of all existing buildings or structures on the parcel;
e. existing and proposed services such as sewage collection and treatment, water supply and distribution, power, telephone, and cable television;
f. the name and signature of the applicant, and the landowner, if not the same as the applicant;
g. the width and location of the roads on which the parcel fronts, indicating whether they are private or public;
h. the location of any existing and proposed access to a public road;
i. the location of wetlands, shorelines, or sand dunes on the parcel, or within 150 feet of its boundaries;
j. the proposed use of land, buildings, and structures; and
k. where the parcel of land has shore frontage, a statement of the annual rate of erosion. (EC159/92)
With specific reference to Section 23, the Commission is of the view that the application is deficient by reason of its non-compliance with paragraphs (b), (e), (g), (i) and (k). In some respect, each of the foregoing provisions was incomplete and again, while the Commission understands why Mr. Walters attempted to exercise discretion, the Commission finds that the application must be completed in all respects - neither Mr. Walters nor the Commission has any authority to change the Regulations. Our job is to apply them as they are written. It may be that given this particular fact situation, these Regulations might be revisited in order to specifically provide for the present fact situation or merely to allow for some discretion in the person charged with taking and reviewing the application on behalf of the Minister.
In any event, the Regulation is clear in what is required under Section 23 and we must apply that regulation to the present case. As Jenkins, J. said in the case Sobeys Inc. v. Charlottetown, 31 M.P.L.R. (2d) 254, "…Council failed to follow its own bylaws. The City… through its own bylaws established a mandatory regime. Its bylaws are specified to be mandatory…". Similarly, in the matter now before this Commission we find that the Province has established certain Regulations which are mandatory and are conditions precedent to the issuance of a building permit.
For these reasons alone, the Commission is of the view that the appeal must be allowed and the building permit quashed.
Section 15 of the Regulations
In the alternative, even if Section 23 of the Coastal Area Regulations had been complied with (which the Commission finds not to be the case), the Commission then must deal with the application of Section 15 of the Regulations. That section states as follows:
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
a. does not conform to
i. sections 35 to 37 and 40 to 45 of Part V and sections 69 to 71 of Part VIII of these regulations,
ii. any other regulations made under the Act, the Provincial Building Code or respecting fire prevention; or>
b. would be detrimental to the convenience, health or safety of occupants or residents in the vicinity or general public;
c. would precipitate premature development or unnecessary public expenditure, or would place undue pressure on the municipality or the province to provide services;
d. would result in undue damage to the natural environment ;
e. would have a detrimental impact on surrounding land uses; or
f. would result in a fire hazard to the occupants or to the neighboring buildings or structures.
The Commission is particularly interested in the application of paragraph 15(1)(e) and in the evidence of Mr. Walters in this regard. In his view, paragraph 15(1)(e) did not have any application to the matter before him because the Regulations do not protect viewscapes. In support of this, Ms. DeMone, on behalf of the Minister, relied upon a decision of the Commission in the case of Julie E. Ireson v. The Minister of Provincial Affairs and Attorney General, Order LA96-13, dated August 27, 1996. At first glance, the Ireson Case appears to be on point. In that particular case the Commission found in favor of the Minister by reason of the fact that the Appellant offered no substantive proof that she would be impacted by the development of a potato storage warehouse.
In the present case, Mr. John Ives gave evidence for the Appellants. Mr. Ives stated that he is a Fellow of the Real Estate Institute; a Certified Residential Appraiser; has testified in Court a number of times; and has carried out over 3000 appraisals. His uncontradicted evidence was that an impact would occur if the viewscape were blocked. This evidence was not challenged by the Minister. The evidence of Mr. Ives in this case distinguishes it from the Ireson Case where no proof was offered of any detrimental impact. It should also be noted that paragraph 15(1)(e) does not prescribe any levels of "detrimental impact". The paragraph does not allow for determining the level or severity of the detrimental impact. Rather, the Regulation is clear that no building permit will be issued where the location would have a detrimental impact on surrounding land uses – that is the law we must apply.
It is clear from the evidence, that Mr. Walters did not consider this section to be applicable, and therefore we are not overruling his decision in this regard. Rather, since the hearing before us is a hearing de novo1, and since evidence was presented to the Commission that was not available to the Minister in the first instance, we are at liberty and indeed required to consider that evidence in disposing of the present appeal. Black's Law Dictionary in defining the word "detriment" says that it means "any loss or harm suffered in person or property". Given the evidence of Mr. Ives, the Commission can only conclude that since the property value would decrease by $5,000 to $10,000 on a sale if the building were relocated as requested by the Developer, then this certainly would have a detrimental impact on the Appellants' property.
Further, in reaching this decision, the Commission is mindful of the wording of section 15(1)(e) of the Regulations which prohibit the Minister from issuing a building permit "where, in the opinion of the Minister, the proposed building or structure, "…. (e) would have a detrimental impact on surrounding land uses" . This is mandatory. Perhaps, some discretion or level of detrimental impact ought to be included in this section, but the fact is that no such allowance is presently available to the Minister. Further, since the Minister did not consider this section in formulating his opinion, and given the fact that the Commission has heard uncontradicted evidence in this regard, we can only conclude that the permit ought not to have been issued.
As indicated at the outset of these reasons, while the Appellants raised a number of other issues for consideration by the Commission, it was not necessary to deal with those issues in order to dispose of the present appeal. In fact, the Commission makes no finding with respect to any of the other arguments submitted by the Appellants in this case.
In closing, the Commission notes that the parties to this appeal i.e. the Appellants and the Developer have been neighbours for a considerable period of time. It is indeed unfortunate that they could not find a way to solve their differences giving rise to this appeal. It would appear to the Commission that there are other options available which would satisfy the interests of both the Developer and the Appellants, but would not place the storage building precisely where the Developer presently suggests. It is the hope of the Commission that after some further reflection on this matter, the parties might be able to resolve their differences so that each might continue to enjoy their own properties and the common beauty of the area.
In any event, the appeal by the Appellants is allowed and the building permit C-015-98 is quashed.
4. Disposition
An Order allowing the appeal will therefore issue.
Order
WHEREAS Donald Stewart and Elizabeth Stewart have appealed a decision of the Minister of Community Affairs and Attorney General, dated February 17, 1998;AND WHEREAS
the Commission heard the appeal at a public hearing conducted in Charlottetown on May 26, 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 ActIT IS ORDERED THAT
1. The appeal is hereby allowed and building permit number C-015-98 is quashed.
DATED
at Charlottetown, Prince Edward Island, this 2nd day of July, 1998.BY THE COMMISSION:
Wayne D. Cheverie, Q.C., Chair
Weston Rose, Commissioner
Elizabeth MacDonald, 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 In the matter of section 14(1) of the Island Regulatory and Appeals Commission Act, R.S.P.E.I. 1988 Cap.I-11, a stated case by the Island Regulatory and Appeals Commission to the Prince Edward Island Supreme Court - Appeal Division. Date of Judgment July 18, 1997.