Docket LA99007 & LA99013
Order LA99-09IN THE MATTER of an appeal by Jean E. DeLory against certain decisions by the Minister of Community Services and Attorney General, dated April 14, 1999, June 10, 1999 and June 16, 1999.
BEFORE THE COMMISSION
on Tuesday, the 30th day of November, 1999.
Wayne D. Cheverie, Q.C., Chair
James Carragher, 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
Represented by:
John DeLoryWitnesses:
Jean E. DeLory
John DeLory2. For the Respondent:
Counsel:
Les ZielinskiWitnesses:
Niall MacKay
Don Walters3. For the Developer
Counsel:
Sean CaseyWitnesses:
Ray Brow
Gary Walsh
Reasons for Order
1. Introduction
The Appellant, Jean E. DeLory, has filed two appeals with the Commission against certain decisions by the Minister of Community Services and Attorney General (the Respondent). The decisions appealed were made by the Respondent on April 14, 1999, June 10, 1999 and June 16, 1999. Appeals from these decisions have been filed with the Commission pursuant to Section 28 of the Planning Act R.S.P.E.I. 1988 Cap. P-8.
According to the Notice of Appeal filed by the Appellant on May 3, 1999, the Appellant appeals the decision made by the Respondent to grant a building permit to Ray Brow (the Developer) on April 14, 1999 to "allow rezoning and building of a winterized rental unit" (Exhibit A1). In addition, the Appellant filed a further Notice of Appeal on June 28, 1999, appealing the decisions made by the Respondent to issue building permits to the Developer on June 10, 1999 and June 16, 1999 to construct additions to the existing cottage (Exhibit A6). The Commission has designated these Appeals as LA99007 and LA99013, respectively.
For ease of process, the Commission consolidated the hearing of the above noted appeals. The hearing began on September 14, and continued on September 15 and October 18, 19 and concluded on October 28. The Commission also conducted a site visit on October 28, 1999 in the presence of all parties.
The evidence at the hearing disclosed the following events in chronological order:
April 12, 1999 the Developer made application to construct a rental cottage (Exhibit R2).
April 14, 1999 the Respondent issued Building Permit Number K-60-99 for the construction of a rental summer cottage (Exhibit R7).
April 29, 1999 the Developer made application for change of land use from summer cottage to commercial (Exhibit R10).
May 3, 1999 the Appellant filed a Notice of Appeal against a decision by the Respondent to issue Building Permit Number K-60-99 - Commission Docket Number LA99007 (Exhibit A1).
June 9, 1999 the Developer made application for an addition to an existing cottage, including wheel chair ramp, decks and gazebo (Exhibit R15).
June 10, 1999 Building Permit Number K-60-99 was cancelled (Exhibit R15).
June 10, 1999 the Developer made application to construct a garage and workshop (Exhibit R14).
June 10, 1999 the Respondent issued Building Permit Number K-143-99 for the construction of an addition to an existing cottage (Exhibit R15).
June 16, 1999 the Respondent issued Building Permit Number K-153-99 to construct an addition to an existing cottage to be used as a private garage and a private workshop (Exhibit R22).
June 28, 1999 the Appellant filed a Notice of Appeal against the Respondent's decision to issue Building Permits Number K-143-99 and Number K-153-99 (Exhibit A6).
2. Discussion
The Appellant submits that Building Permit Number K-60-99 should not have been issued as the Developer did not have the consent of the majority of property owners in the subdivision to approve the change of land use for the construction of a rental summer cottage. The Appellant also submits that the building permit does not comply with the provisions of subsection 35(1) of the Planning Act Regulations (the Regulations) as the proposed "winterized rental unit" is not a permitted use (Exhibit A1).
Regarding Building Permits Number K-143-99 and Number K-153-99, the Appellant submits that the proposed development is a complete and separate dwelling and is not permitted pursuant to subsection 35(1) of the Regulations.
The Appellant further advances the following points to support her contention that these latter permits should be quashed:
The existing cottage is a non-conforming use because of its proximity to the riverbank and therefore it shall not be intensified or altered with the proposed addition. Further, two houses on one lot joined by a walkway is a major variance from the intent of the Act and Regulations.
The Department failed to follow Departmental policy when changing the use to allow a rental cottage.
The Department used an incorrect survey upon which to make a decision to allow for the change of use.
The Department did not consult with adjacent property owners before granting the permits.
The subject lot does not have sufficient capacity for the treatment of on-site sewage disposal which could have adverse impacts on adjacent properties.
The proposed development will have adverse effects on the DeLory property associated with crowding, overloading the driveway and the danger of causing her well to run dry.
The Developer and Respondent argue in support that the existing development satisfies the provisions of the Regulations. With respect to Building Permit Number K-60-99, this permit has been cancelled and therefore should not form part of this appeal.
The Developer takes the position that the development represents a single dwelling, albeit with two dwelling units joined by way of a deck and gazebo. The development consists of both indoor and outdoor living space.
The Respondent submits that although it erred in issuing Building Permit Number K-60-99, the subsequent permits were issued in compliance with the provisions of the Regulations. The Respondent contends that there may be more than one dwelling unit associated with summer cottage, as defined by the Regulations. The Respondent states that the new development is viewed as an addition to the existing cottage and places particular emphasis on the application of the definition of "summer cottage" in the Regulations.
Both the Respondent and Developer contend that the development represents one dwelling and therefore does not offend the provisions of subsection 35(1) of the Regulations. They therefore request that the appeals should be denied.
3. Findings
A. APPEAL LA99007
With respect to the first appeal filed by the Appellant against the Respondent's decision to issue Building Permit Number K-60-99, the Respondent clearly admitted that it was wrong when it issued the permit on April 14, 1999 and sought to remedy this error by cancelling the permit on June 10, 1999. Since the permit was cancelled, the appeal against it is hereby dismissed.
B. APPEAL LA99013
Regarding the second appeal, according to Exhibit R14 and Exhibit R15, the Developer made application for two permits to allow for additions to the existing cottage with detailed information and drawings attached. These applications and subsequent building permits (Exhibit R15 and Exhibit R22) issued on June 10, 1999 and June 16, 1999 respectively, formed the focus of the present appeal. In reviewing the applicable law as set out in the Planning Act and its Regulations, it is important to note at the outset that "addition" is not defined. However, the Respondent clearly processed the Developer's applications as additions to an existing cottage. This is supported by the building permits and the evidence of Mr. Don Walters on behalf of the Respondent.
The Respondent placed a great deal of importance on the definition of "summer cottage" as it is found in the Regulations. That definition reads as follows:
"summer cottage" means a building that is occupied or intended to be occupied seasonally and includes other buildings or structures used or to be used in conjunction therewith;
While "addition" is not defined in the Regulations per se, the Respondent relied on Section 12 of the Regulations and in particular subsection 12(d). Section 12 reads:
12. Subject to section 12.1, no person shall without first obtaining a building permit therefor issued by the Minister (a) commence the construction of any building or structure;
(b) change the location of any building or structure;
(c) move or relocate any building or structure, either by(i) moving any building or structure from a lot to another lot,
(ii) changing the location of a building or structure on a lot; or(d) make any major structural alterations to or change the interior or exterior dimensions of any building or structure.
For her part, the Appellant relies on subsection 35(1) of the Regulations. It states:
35.(1) No person shall locate more than one dwelling on a lot or parcel of land except
(a) in conjunction with a farming operation, and where the use of the dwelling is clearly incidental to the use of the main building; or
(b) as a garden suite in conjunction with a single family dwelling in accordance with subsection (2).
The Appellant contends that the new construction is not an addition to the Developer's summer cottage, but rather constitutes a new "dwelling" and therefore violates subsection 35(1) of the Regulations.
"Dwelling" is also defined in the Regulations:
"dwelling" means a building or portion thereof designed arranged or intended for residential occupancy;
(a) "duplex dwelling" means a building that is divided into two dwelling units and "semi-detached dwelling" has a corresponding meaning;
(b) "dwelling unit" means two or more rooms used or intended for domestic use of one or more individuals living as a single housekeeping unit with cooking and sanitary facilities;
(c) "multiple family dwelling" means a building containing three or more dwelling units and "town house dwelling" has a corresponding meaning;
(d) "single family dwelling" means a building, together with the land upon which it is situated, intended for human habitation comprising not more than one dwelling unit and "single family detached dwelling" has a corresponding meaning;
(e) "single family unit" includes a mobile home and a single family dwelling;
It is interesting to note that the definition of "dwelling" and the definition of "summer cottage" each commence with a reference to a "building" which may be used for certain purposes. In turn, "building" is defined in the Regulations as follows:
"building" means any structure having a roof supported by columns or walls intended for the shelter, housing or enclosure of any person, animal, or chattel, and includes a mobile home;
There can be no doubt from the evidence but that the new construction is a "building" within that definition. Further, "building" means a "structure" and that term is defined as well in the Regulations:
"structure" means any construction fixed to, supported by or sunk into land or water, but excludes concrete and asphalt paving or similar surfacing and a fence;
The evidence discloses that the new construction also meets the definition of "structure".
It appears, then, that the Respondent in applying the several definitions set out above, against the backdrop of section 12 of the Regulations, saw the Developer's application as an alteration to or a change to the "exterior dimensions of any building or structure" as those words appear in subsection 12(d).
As the Commission has stated in prior decisions, the appeal before us is by way of a hearing de novo. That being the case, we are entitled to substitute our decision for the one appealed from. However, we do not have unfettered discretion to do so, and ought not to interfere with the decision appealed from if in fact the decision appealed is not an unreasonable one. In other words, the Commission ought not to substitute its decision for that of the body appealed from if the original decision was reasonable although one which we may not like. The question then becomes: Is this a reasonable interpretation and application of the applicable regulations?
After carefully reviewing all of the evidence in light of the applicable law, we are of the view that the approach taken by the Respondent in processing this application was not unreasonable. The definition of "summer cottage" and its special treatment in the Regulations is key to our decision in this regard. Apparently, the legislators saw fit to single out the phrase "summer cottage" and define it in the Regulations to include "other buildings or structures used or to be used in conjunction therewith". A fair interpretation of these words would include the new construction undertaken by the Developer in this case. Whether or not the legislators intended those words to include construction such as in the present case, is open to debate. However, in our view, it is clear that those words are open to the interpretation placed on them by the Respondent.
The second important factor in our determination is the fact that the definition of "dwelling" makes no reference to summer cottage. As noted above, summer cottage is singled out for special attention in the definition section. Given the fact that the words "dwelling" and "summer cottage" have been separately defined, they are entitled to equal weight. Subsection 35(1) upon which the Appellant relies speaks of a "dwelling". The Commission is of the opinion that it would be fair to conclude that if subsection 35(1) of the Regulations were intended to apply to a summer cottage, then the legislators would have included summer cottage specifically. For example, the Regulations might have read "no person shall locate more than one dwelling or summer cottage on a lot or parcel of land except…" and so on.
The Commission therefore concludes in light of the foregoing, that the Developer applied for additions to his summer cottage in the form as specified in his detailed drawings, and that such construction is permissible under the Regulations. The Respondent treated the applications as additions to an existing cottage which, for the foregoing reasons, was not an unreasonable approach to take. Therefore the appeal must fail and the Respondent's decisions to issue Building Permits Number K-143-99 and Number K-153-99 are affirmed.
While the Commission has reached this conclusion, we hasten to point out that the inclusion of a definition of an "addition" in the Regulations would be helpful in determining the fate of future applications in this regard. While the Commission has reached its conclusions as set out above, given the particular facts of this case, the Respondent ought not to conclude that we might reach the same conclusion in another case. In short, the Regulations ought to be clarified and strengthened with respect to the type of construction undertaken by the Developer in this case as it relates to future similar applications. That being so, the Commission recognizes that the argument advanced by the Appellant was indeed compelling. It was well presented and one which gave the Commission considerable food for thought. In the end, however, we were not persuaded that subsection 35(1) is relevant for the reasons already set out in this decision.
As to the Appellant's submission that the Respondent failed to follow Departmental policy when changing the use to allow a rental cottage and that the Respondent used an incorrect survey upon which to make such a decision, the Commission finds that these grounds are not relevant to Building Permits Number K-143-99 and Number K-153-99. The evidence before the Commission is that Building Permit Number K-60-99 was cancelled and no additional permit was granted to allow for a change in use. For these reasons, the Commission finds these grounds are without merit.
On the matter that the Respondent did not consult with adjacent property owners before granting the permits, the Commission finds that there is no such requirement in the Regulations. Therefore, this ground is also without merit.
With respect to the Appellant's allegation that the subject lot does not have sufficient capacity for the treatment of on-site sewage and that the proposed development will have adverse effects on the DeLory property associated with crowding, overloading the driveway and could cause her well to run dry, the Commission finds that the Appellant has presented no evidence to support these assertions. The evidence of Mr. Gary Walsh, on the other hand, gave a contrary view to the Appellant's position. Further, the Department stated that they considered these matters before issuing the building permits. As the Appellant did not produce any evidence to support the allegations, the Commission finds these grounds must fail.
The final ground put forward by the Appellant was that the existing cottage is a non-conforming use and the Respondent erred in allowing a major variance by permitting two dwellings on one parcel. The Respondent contends that the applications by the Developer and subsequent approval of the permits constituted the required written permission for alteration or intensification and satisfied Departmental policy. The issue pertaining to two dwellings on one parcel has been previously addressed. The Commission finds that the Respondent's position is not an unreasonable one and therefore the Appellant fails on this ground as well.
C. ADDITIONAL COMMENTS
The Developer indicated in his evidence that the reason he embarked on this project initially was to create additional living space for himself and his family. Since this was his expressed intention, he readily agreed that he did not intend to rent the new premises. Furthermore, the Developer's witness, Mr. Gary Walsh, when asked to describe the completed construction said it was "one living unit". In addition, Mr. Walters in his evidence made it clear that if Mr. Brow were to rent the new premises he would be subject to prosecution because the permit was granted to him to add an addition to his summer cottage for his own personal use. Given all of the foregoing, the Commission is of the view that the Developer's new premises shall be for his use and that of his family, but at no time shall the premises be rented.
One final point remains. While the Commission has reached the conclusion that the appeals must be denied, we note with concern that the Respondent several times in the hearing used the phrase "bringing into compliance", as it related to the Developer's proposed construction. While we recognize that the Respondent's agents have a duty to allow for appropriate construction throughout the province, they must be very careful not to attempt to create a category to suit a particular situation if in fact the law does not allow for it. In short, the Respondent ought to make sure that proposals presented to the Minister comply with the law, but are not necessarily shaped in a specific way if in fact the law did not contemplate their existence.
4. Disposition
An Order denying the appeals will therefore be issued.
Order
WHEREAS
Jean E. DeLory has appealed certain decisions made by the Minister of Community Services and Attorney General to issue three building permits to Ray Brow;AND WHEREAS
the Commission held a public hearing in Charlottetown to hear these appeals on September 14, 15 and October 18, 19 and 28, 1999 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 THAT1. The appeals filed by the Appellant against the Respondent's decisions to issue Building Permits Number K-60-99, Number K-143-99 and Number K-153-99 are hereby denied.
BY THE COMMISSION:
Wayne D. Cheverie, Q.C., Chair
James Carragher, Commissioner
Elizabeth MacDonald, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
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.