Order LA98-10 - LA98008 - Planning Appeal - Gerry Auld v. Dept. of Community Affairs and Attorney General (Jul. 16/98)

Docket LA98008
Order LA98-10

IN THE MATTER of an appeal by Gerry Auld against a decision by the Minister of Community Affairs and Attorney General dated May 8, 1998.

BEFORE THE COMMISSION

on Thursday, the 16th day of July, 1998.

Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Elizabeth MacDonald, Commissioner

Order

Contents
Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1. For The Appellant

Witness:
Gerry Auld

2. For The Minister

Witnesses:
Don Walters
Garth Carragher

Reasons for Order

1. Introduction

Gerry Auld (the Appellant) has appealed a decision made by the Minister of Community Affairs and Attorney General (the Minister) on May 8, 1998 to deny a building permit for a storage building for a water pump system on property number 641969 located at Stanhope, P.E.I.

This appeal was filed with the Island Regulatory and Appeals Commission (the Commission) on May 15, 1998 pursuant to Section 28 of the Planning Act (the Act) R.S.P.E.I. 1988, Cap. P-8.

After due public notice the Commission heard the appeal on July 8, 1998 in Charlottetown.

2. Discussion

The Appellant

The Appellant's position may be summarized as follows:

The Appellant stated that he is in the process of developing a subdivision which will contain underground servicing. As part of this development he is proposing to develop a building which will house the water pumps for the central water system. The Appellant has applied for a building permit to locate this building on a small piece of land identified as Parcel A in Exhibit D4.2.

The Appellant contends that he does not want to change the location of this building and locate the building a greater distance from the road as this would require using part of lot number 10 within the subdivision.

During the hearing the Appellant stated that he understands that the proposed location of the building fails to meet the minimum set back regulations however, he is requesting an exemption from these requirements.

In seeking an exemption, the Appellant indicated it was his understanding that the Department's concern with his proposed building and the setback from the road was with safety. The Appellant stated that he felt this was not a problem in this case because cars entering the Bay Shore Road from this subdivision, would have one to one and a half car lengths between the location of the proposed pump storage building and the intersection of the Bay Shore Road and the subdivision road. The Appellant felt this would provide sufficient sight clearance for cars traveling on the Bay Shore Road and the subdivision road to move in a safe manner.

The Department

The Department's position may be summarized as follows:

The Department states that they considered the Appellant's request for a building permit and his request for a variance but determined that the proposed location of the building cannot meet the set back requirements from the Bay Shore Road.

The Department submits that they had no alternative but to deny the permit.

3. 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 legislation.

In this case, it is an agreed upon fact that the location of the lot (identified as parcel A in Exhibit D4.2) upon which the proposed building is to be developed is located adjacent to the Bay Shore Road. According to Exhibit D4, the lot has approximately 29 feet of frontage on the Bay Shore Road and 20 feet of frontage on the road which will be developed to access the subdivision.

According to the Minister's representatives there is no area on Parcel A which could be developed as the entire parcel is located too close to the road and does not satisfy the set back provisions of Section 43 of the Planning Act Regulations. This matter was not disputed by the Appellant.

Section 43 states:

43. No person shall erect any part of any building or structure

in any town or community to which these regulations apply, less than fifty feet from the centre line of any street or road, or less than seventeen feet from the road boundary;

in any subdivision outside the boundaries of a town or community, less than sixty feet from the centre line of the subdivision road or less than twenty-seven feet from such road boundary, whichever is greater;

outside of any town, community or subdivision, less than eighty-three feet from the centre line of the nearest public road, or less than fifty feet from such road boundary;

where the lot is a corner lot and where the speed limit is 60 km/h or greater, less than eighty-three feet from the centre line of each road or less than fifty feet from each road boundary; or

less than two hundred feet from the centre point of intersection of any road with a railway. (EC601/77; 459/87).

Accordingly, the Commission finds that it is bound by the Regulations and is, therefore, not able to consider an exemption to the set back provisions which would allow a permit to be issued in this instance.

As to the Appellant's request that a variance be granted to effectively reduce the set back provisions, Section 9 of the Regulations sets out the provisions for granting a variance which states:

9.(1) The Minister may, for special cause, authorize such minor variance from the provisions of these regulations as in his opinion is desirable and not inconsistent with the general intent and purpose of these regulations.

(2) Applicants seeking a variance from the provisions of these regulations shall clearly document the grounds for special cause for the consideration of the Minister.

(3) Notwithstanding any other provisions of these regulations, where a lot is intended for use by a public utility, or any non-residential use where water and sewerage servicing is not essential for the proposed development of the lot, an exemption from the requirements of these regulations in relation to lot category, minimum lot area, frontage, and diameter of circle to be contained within the lot boundaries may be approved.

(4) Where an exemption has been approved pursuant to subsection (3), a change in use to permit a development requiring water and sewerage servicing shall be approved only if the lot meets the minimum standards set out in Table 1 or Table 2 of these regulations.

The Minister's representatives stated during the hearing that they considered the Appellant's request but decided that the proposal does not comply with the intent and purpose of the Regulations and therefore decided to deny the request.

The Commission has considered the provisions of this section and particularly the Appellant's request to have subsection 9(3) apply. Upon review of this subsection, the Commission finds that the subsection very clearly identifies those requirements which can be exempted and these do not include the setback requirements.

Even though the Appellant contends that he should be granted an exemption to the Regulations, the Commission finds that pursuant to section 43 of the Regulations the enforcement of the minimum set back 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 this regulation as this would be tantamount to the Commission making its own law which clearly it cannot do.

For these reasons the appeal must be denied.

4. Disposition

An Order denying the appeal will therefore be issued.

Order

WHEREAS Gerry Auld (the Appellant) has appealed a decision by the Minister of Community Affairs and Attorney General dated May 8, 1998;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on July 8, 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 hereby denied.

DATED at Charlottetown, Prince Edward Island, this 16th day of July, 1998.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Norman Gallant, 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.