Docket LA98007
Order LA98-13IN THE MATTER of an appeal by Kathy and Mark Hodson against a decision made by the Minister of Community Affairs and Attorney General, dated May 5, 1998.
BEFORE THE COMMISSION
on Thursday, the 3rd day of September, 1998.
Wayne D. Cheverie, Q.C., Chair
Norman Gallant, Commissioner
Clayton Bulpitt, Commissioner
Order
Contents
Appearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses 1. For the AppellantWitness:
Mark Hodson2. For the Respondent
Witness:
David E. Hume
Reasons for Order
1. Introduction
Kathy and Mark Hodson (the Appellants) have appealed a decision made by the Minister of Community Affairs and Attorney General (the Respondent) on May 5, 1998 to deny a building permit on property number 674051 located at New Dominion, P.E.I.
This appeal was filed with the Island Regulatory and Appeals Commission (the Commission) on May 13, 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 August 25, 1998 in Charlottetown.
2. Discussion
The Appellants
The Appellants' position may be summarized as follows:
The Appellants stated that prior to 1996 they owned two parcels (property number 455543 and 674051). In 1996 they sold property 455543 and retained a legal right-of-way via a driveway located on parcel 455543 to access parcel 674051 from the highway.
The Appellants submit that it is their intention to use this right-of-way to access property number 674051 to enable them to build a house or sell this property.
The Appellants stated that they do not disagree with the findings of the Department as to the measurements taken for sight distance. The Appellants submit, however, that their appeal was filed because they believe that they have a legal right-of-way to access the subject property and therefore a building permit should be approved.
The Appellants request the Commission allow the appeal and approve a building permit.
The Respondent
The Respondent's position may be summarized as follows:
On behalf of the Minister, David Hume stated that he carried out a preliminary inspection of the property and determined that the sight distance was approximately 125 meters. Upon completion of the inspection, Mr. Hume concluded that the sight distance was not adequate and requested a representative from the Department of Transportation and Public Works to conduct additional testing. The results of the test conducted by the Department of Transportation and Public Works concluded that sight distance was actually 120 meters and therefore the sight distance was inadequate for the location or intensification of an access driveway along the frontage of the property.
By letter dated May 5, 1998, the Department notified the Appellants that pursuant to Subsection 15.(2) of the Planning Act Regulations, their proposal was denied because the property would be served by an access driveway which has unsafe sight distance (Exhibit D7).
The Respondent requests that the appeal be denied.
3. Findings
After giving careful and full consideration to the evidence submitted in this case, it is the decision of the Commission that the appeal must be denied.
The uncontradicted evidence before the Commission is that at no point along the frontage of the subject property is there adequate sight distance, pursuant to the standards as set out in Schedule G of the Roads Act Highway Access Regulations. It was also agreed that the property is located along Route 19 which is designated as a local highway and the sight distance along the frontage of the subject lot is approximately 120 meters. The Appellants also stated that they believe the subject lot was created in 1983.
In deciding this matter the Commission has reviewed the Planning Act Regulations and the Roads Act Highway Access Regulations. In particular, Section 15.(2) of the Planning Act Regulations states:
Section 15. (2)
No building permit shall be issued for any parcel of land where the entrance way does not conform to the sight distance standards for entrance ways set out in the Roads Act Highway Access Regulations.
Schedule G of the Roads Act Highway Access Regulations states that the minimum safe stopping sight distance requirement is 140 meters along local highways.
Based on the evidence, the Commission concludes that the sight distance is approximately 120 meters, therefore there is no point along the road frontage of the subject property where an entrance way would be safe in accordance with the minimum sight distance requirements of the Regulations.
It is the Commission's opinion that although the Appellants may have a legal right-of-way to the subject lot, the minimum sight distance standards as set out by Regulations cannot be satisfied, and therefore no building permit can be issued pursuant to the provisions of section 15.(2) of the Regulations.
As to the Appellants' contention that access to the property via a legal right-of-way on property number 455543 was "grandfathered" under the Act, the Commission disagrees. The Commission believes that although the Appellants may have a legal right-of-way to access their property, this does not entitle the Appellants to an access as required by the Roads Act Highway Access Regulations nor does this entitle them to a building permit pursuant to the provisions of the Planning Act Regulations.
As stated during the hearing, the Commission as a creature of statute, is bound by the Planning Act and Planning Act Regulations. There are no statutory or legislative provisions that give the Commission the authority to vary any regulation as this would be tantamount to the Commission making its own law which clearly it cannot do. Although in cases such as this, where the Commission has great sympathy for the Appellants and the situation in which they find themselves with respect to the limited building potential of the subject lot, the Commission believes that the safety of the traveling public is paramount and must be protected. To allow the Appellants to use the existing access or to create a new access to the subject lot could place the safety of the public at further risk.
For these reasons the appeal must be denied.
4. Disposition
An Order denying the appeal will therefore be issued.
Order
WHEREAS
the Appellants, Kathy and Mark Hodson have appealed a decision made by the Minister of Community Affairs and Attorney General on May 5, 1998 to deny a building permit for property number 674051 located at New Dominion;AND WHEREAS
the Commission heard the appeal at a public hearing conducted in Charlottetown on August 25, 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 denied.
DATED
at Charlottetown, Prince Edward Island, this 3rd day of September, 1998.BY THE COMMISSION:
Wayne D. Cheverie, Q.C., Chair
Norman Gallant, Commissioner
Clayton Bulpitt, 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.
