IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal, under Section 28 of the Planning Act, by Triple K. Construction Inc. of St. Peters, Prince Edward Island, against a decision of the Department of Community and Cultural Affairs to deny approval for the construction of rental cottages on property (Provincial Property #177014) located at St. Peters Lake.
BEFORE THE COMMISSION
on the 18th day of February, 1992
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
Myrtle Jenkins - Smith, CommissionerDate of Decision: March 3, 1992
Date of Order: May 22, 1992
DECISION & ORDER
Appearances
Fred Gunn
Appellant, representing Triple K. Construction Inc.
Ken Campbell
Property Development Officer, Department of Community and Cultural Affairs
Background
In accordance with the Planning Act and the Planning Act Regulations, the Minister of the Department of Community and Cultural Affairs has the authority to approve or deny the issuance of building permits.
In August, 1991, Triple K. Construction Inc. completed a form letter provided by the Department of Community and Cultural Affairs and submitted it to the Department to request an evaluation of a proposal for the development of rental cottages on the St. Peters Road in the Community of St. Peters Lake.
The original request was to construct the rental cottages on a 5 or possibly 10 acre parcel of land. The parcel is part of Provincial Property Number 177014 and presently owned by Mr. James R. MacAdam. The parcel fronts on the St. Peters Highway which is designated under the Planning Act Regulations an arterial highway. The land has been used for farming purposes.
On September 5, 1991, the Department responded that the proposed development "should prove satisfactory" if the Company acquired or purchased in excess of 10 acres to accommodate the development proposal.
On October 17, 1991, the Planning Act Regulations were amended which had the effect of prohibiting the proposed development by placing a moratorium on access driveways on arterial highways.
Section 15.1 No building permit shall be issued where access to the proposed building or structure or an existing building or structure that is to be altered or repaired is by way of a new access driveway located on an arterial highway or where the use of an existing access driveway would be intensified.
On November 1, 1991, the Department advised Triple K.Construction Inc. to complete a building permit application. Fred Gunn, representing the Company , completed and filed the building permit application on November 12, 1991.
After evaluating the application, on December 10, 1991, the Department informed Triple K. Construction Inc.that the building permit application was denied.
On January 3, 1992, Triple K. Construction Inc.appealed the decision of the Department to the Island Regulatory and Appeals Commission. The appeal was heard on February 18, 1992 in Charlottetown.
Evidence and Argument
Arguments for the appellant can be summarized as follows:
(1) The appellant could not understand why the application for the building permit was turned down especially since the vehicle traffic flow is not excessive at the general location of the access to the property. At one time there were two access driveways to the parent parcel however the owner had them removed to control access to the land by visitors.
(2) The amendment to the regulations should not apply to this particular application because the process had commenced in October, 1990 and the amendment was made in October, 1991, one year later. It is unfair to apply the amendment to the application because the Company had applied before the amendment.
(3) The location is an excellent one for rental cottages since it is on the way to the new golf course at Lakeside. There will be a need for accommodations in the area.
Arguments for the Department of Community and Cultural Affairs can be summarized as follows:
(1) Although the Department had initially indicated that the development proposal would be acceptable if the applicant acquired in excess of 10 acres to accommodate the rental cottages, once the amendment to the Regulations was made any new application would be subject to the new requirements. The Department decided that the letter submitted by the appellant on August 29, 1991 and the subsequent submission of an application for a building permit did not constitute a "continuous application". Therefore, the Department treated the building permit application as a new application and subject to the new regulations.
(2) The Department determined that the proposed use for the parcel would clearly intensify the use of the access to the parcel from an arterial highway and therefore the issuance of a building permit would be in contravention of Section 15.1 of the Regulations.
(3) The Commission should not allow the appeal.
Decision
Having considered the evidence presented during the hearing the Island Regulatory and Appeals Commission denied the appeal of Triple K. Construction Inc. The reasons for not allowing the appeal are:
(a) The application for the building permit was received by the Department of Community and Cultural Affairs on or about November 12, 1991. The amendment to the Planning Act Regulations was made on October 17, 1991. The Commission concludes that if the building permit application was indeed new as the Department concluded, Section 15.1 would prohibit intensifying the use of the access and the application would have to be denied.
(b) It is clear from the evidence that the appellant had made a special effort to determine if the use of the property for rental cottages was suitable. From the Department's response it seemed the only issue for the appellant to overcome was the size of the parcel. However, before the formal application was made, changes were made to the Planning Act Regulations that effectively prohibited the proposed development. In the opinion of the Commission, if Triple K. Construction Inc. had a vested or accrued right to a building permit prior to the change in the Regulations, it would most likely be entitled to the permit, notwithstanding any other changes in the law not considered in this appeal.
So the question is whether the appellant had an accrued or vested right to a permit prior to the change in the Regulations. The Commission has studied this question and has concluded that an accrued or vested right to a building permit crystallizes upon the filing of an application together with all other required documentation such that the application complied in all respects with the Regulations in effect at the time of the application. In other words, if nothing further need be done with respect to the application under the former regulations, the applicant would have been entitled to a permit even if the rule changed. The Commission finds based on the evidence presented that Triple K. Construction Inc. had not obtained a vested right to a permit prior to the regulation. The application for a building permit was not filed until after the regulation was amended. The Commission therefore concludes that the appeal must be denied.
IN THE MATTER of an appeal, under Section 28 of the Planning Act, by Triple K Construction Inc. of St. Peters, Prince Edward Island, against a decision of the Department of Community and Cultural Affairs to deny approval for the construction of rental cottages on property (Provincial Property #177014) located at St.Peters Lake.
Order
WHEREAS Triple K Construction Inc. (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission), by written notice dated January 3, 1992, against a decision of the Department of Community and Cultural Affairs;
AND WHEREAS the Commission heard the appeal at public hearings conducted at Charlottetown on February 18, 1992 after due public notice;
AND WHEREAS the Commission has made a decision in accordance with the stated reasons;
NOW THEREFORE, pursuant to the Planning Act:
IT IS ORDERED THAT the appeal is hereby denied.
DATED at Charlottetown, Prince Edward Island , this 22nd day of May, 1992.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
Myrtle Jenkins-Smith, Commissioner
