DECISION LL92-3
IN THE MATTER of the Planning Act, R.S.P.E.I. 1988 Cap. P-8;
and
IN THE MATTER of an appeal to the Island Regulatory and Appeals Commission (the Commission), under Section 28 of the Planning Act, by Lawrence MacKinnon (the Appellant) of Mount Herbert, against a decision whereby the Department of Community and Cultural Affairs (the Department) issued a building permit to Roy Bell of Mount Herbert to construct a commercial convenience store on property (Provincial Property Number 715012) located at Mount Herbert.
APPEAL HEARD BEFORE:
John L. Blakney, Vice Chairman
Anne McPhee, Commissioner
Myrtle Jenkins-Smith, CommissionerDate of Decision: May 28, 1992
DECISION
Appearances
Lawrence MacKinnon the Appellant,
Lynn Murray Legal Counsel for the Appellant,
Sharon Slauen-White in support of the Appellant,
Donna Weeks in support of the Appellant,
Wayne Jay in support of the Appellant,
John Hughes Property Development Officer, Department of Community & Cultural Affairs,
Roy Bell the Developer,
Cathy Parkman Legal Counsel for the Developer.
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 for commercial convenience stores.
On October 11, 1991 the Department received an application from Roy Bell and Dale Phillips of Charlottetown for a building permit to construct a store and apartment on property (Provincial Property Number 715102) located on the Fort Augustus Road at Mount Herbert.
After evaluation, the Department decided to issue a building permit to Roy Bell to: "erect a building to be used as a convenience store with a single family dwelling". The permit was issued subject to the following :
1. Use of the existing highway access driveway as per signed agreement dated October 3,1991.
2. The proposal meeting the requirements and regulations of the Fire Protection Act.
3. The proposal meeting the requirements and regulations of the Dept. of Environment.
The Department issued the building permit on November 5, 1991.
On December 2, 1991, Lawrence MacKinnon appealed the decision of the Department to the Commission. The Commission heard the appeal on March 18, 1992.
Preliminary Matters
Prior to hearing argument two preliminary matters were raised.
Issuance of a Building Permit without First Receiving Subdivision Approval
Legal Counsel for the Appellant argued that there may be no decision to appeal since the Department issued the building permit some eight days prior to the approval of the lot. Section 13(1) of the Planning Act Regulations states the following:
13. (1) The Minister shall grant a building permit for any lot which has been approved in accordance with these regulations and which otherwise conforms with the requirements imposed by these regulations.
In addition,
32. (1) Subdivision approval shall not be granted by the Minister until a plan of the subdivision prepared in accordance with section 28 showing the location of survey pins and certified as accurate by an accredited member of the Association of Prince Edward Island Land Surveyors has been submitted to the Minister.
(2) No person shall deviate from any approved plan until he has submitted a plan of revision thereof to the Minister and has received approval therefor from the Minister.
(3) The Minister's approval of a subdivision plan shall designate the permitted uses of the land.
The Appellant argues that the Department should not have issued the building permit prior to the approval of the subdivision and therefore there is no decision to appeal.
John Hughes informed the Commission that this was a common practice of the Department. He explained that normally the Property Development Officer will check with those officials of the same department who review and approve subdivision plans. He also explained that it would not be out of the ordinary for a building permit to be issued prior to the actual stamping of the plan of subdivision. He understood that the Subdivision Control Division gave its OK prior to the issuance of the permit. However, he was unable to file documents to substantiate the fact. Mr. Hughes told the Commission that the building permit would not have been issued if there was a problem with the plan of subdivision. It is a normal course of action taken by the Property Development Property Officer to confer with officials approving the subdivision and once they are satisfied the subdivision requirements are met the building permit is approved. It is not uncommon to find a lag from the time it is decided to approve a subdivision and when it is actually stamped.
Cathy Parkman suggested that this particular lot is the first lot off the parent parcel and therefore would not require approval under the regulations. However, based on the evidence John Hughes presented it is clear to the Commission that the lot is not the first lot off.
The Commission has considered the arguments of the parties. The Commission does not agree with the interpretation of Section 32(1) that the Minister or his officials could not have decided to approve the subdivision prior to the date stamped on the plan of subdivision. Section 32(1), in the opinion of the Commission, does not require the plan of subdivision to be stamped but merely ensures that the Minister cannot approve a plan of subdivision without first receiving a plan properly locating the lots by survey pins and certified as accurate by an accredited member of the Association of Prince Edward Island Land Surveyors. It is reasonable to think that the date stamped on the subdivision plan represents the date the plan was officially approved. However, the regulation does not appear to prevent the Minister from internally granting subdivision approval for purposes of issuance of a building permit as long as a certified pinned plan has been received. It is reasonable to think and expect that an experienced Property Development Officer who wants to expedite the evaluation process would work closely with officials of the Subdivision Control Division of the same department to ensure the lot upon which the building is to be constructed met all requirements of the Regulations. It is also reasonable to think that unless there was a significant difference between the survey plan and the lot dimensions contained on the application, or any other difficulties with the lot that would prevent the permit from being approved, a building permit could be approved. In this particular case, the evidence shows that the lot dimensions indicated on the plan of subdivision are the same as what was given on the building permit application.
The Commission notes that if a building permit is issued in error, under certain circumstances, Section 14 of the Regulations gives the Minister powers to revoke the permit within twelve months.
Section 14. Notwithstanding subsection 13(1), the Minister may, for good and sufficient reason, revoke or cancel a building permit within twelve months of date of issue if
(a) construction has not commenced;
(b) construction has commenced on a location contrary to the provisions of these regulations; or
(c) any permit required under any other provision of law has not been obtained.
In the view of the Commission, Section 14 enables the Minister to revoke any permit that would not comply with the approved building lot. Considering the Department's evaluation process described in evidence by John Hughes, the Commission believes that the Property Development Officer can consider an application for a building permit and decide to issue the permit based on the lot dimensions and other considerations for lot approval.
It appears that the utilization of the stamp is a method of assisting in maintaining a record of an approved plan of subdivision that includes: the number of lots, street and overall design of the subdivision, designated use of the lots and the date when the Department completed the matter. The Commission understands that the stamping of a plan of subdivision is an administrative staff function and that there could be a time lag between the time the Department approved the plan and the actual date stamped on the plan. The regulations do not require the Department to stamp the date of approval and the Commission does not believe such a requirement is "mandatory." There is no evidence before the Commission as to the specific time the Department approved the subdivision, only that it might have approved it internally prior to the issuance of the building permit. Therefore the Commission finds that a decision by the Department to issue the building permit exists and the Appellant has a right to appeal the decision to the Commission in accordance with Section 28 of the Act.
Although the Commission finds that the issuance of a building permit, in the above manner is reasonable and perhaps expeditious and because there is power to revoke if something goes wrong in the actual location of the building on the lot, it believes that the system heavily depends on the abilities of experienced Property Development Officers and Subdivision Control officials. In the Commission's view, the system is subject to inconsistent application, error and confusion and its effectiveness should not rely on experienced officials for they may not always be available. If the stamp appearing on the subdivision plan is to represent the formal date the plan of subdivision is approved then the regulations should clearly prohibit the issuance of building permits until after the date stamped on the plan of subdivision. The regulations should clearly set out the requirements for the approval process.
Expiration of Appeal Period
Cathy Parkman argued on behalf of the Developer that the appeal was not properly before the Commission because the appellant failed to file notice of his appeal prior to the expiration of the 21 day appeal period. Section 28 of the Planning Act provides the right of appeal to the Commission.
28(1) Subject to subsection (2), a person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act, may, within twenty-one days, appeal to the Commission.
In accordance with Section 29(1) major developments include commercial and therefore the appeal period for a convenience store starts on the date of publication of notice indicating that the issuance of the building permit.
Section 29(3) The appeal period referred to in subsection 28(1) begins to run on the date of publication of the notice under subsection (2).
Ms. Parkman argued that the appeal period commenced on November 9, 1991, one day after the publication date of the issuance of the permit. Therefore, the appeal period expired on November 29, 1991. The Commission did not receive notice of the appeal until December 2, 1991, when the appeal period had already expired. Therefore, the appeal; is not properly before the Commission and the Commission has no jurisdiction to deal with the matter.
John Hughes agreed with Ms. Parkman's position however he indicated to the Commission that he felt it was strictly a legal matter and was reluctant to put forward any argument.
Lynn Murray argued that the appellant's legal counsel and the Department could not take the position that the appeal period expired when the Department had not issued a valid building permit, in the first place. The appellant is well within the appeal period since the approved plan of subdivision was not approved until November 18, 1991.
Considering the Commission's decision regarding the validity of the building permit, the Commission cannot accept Ms. Murray's argument on the matter of expiration. Upon review of the relevant legislation, the Commission finds that the Lieutenant Governor in Council fixed the proclamation date of May 16, 1991, for bringing into effect an amendment to the Planning Act that had the effect of removing the requirement for the Department to publish notice that it issued a building permit for a commercial convenience store. According to the amendment "major development" includes a commercial building in excess of 3000 square meters. The building permit application that was received in evidence by the Commission indicates that the proposed building size is 60 feet by 26 feet or 1560 square feet and when converted to metric measurement (145 square meters) is well below the size criteria to allow classification as a "major development". The Commission therefore concludes that the building permit issued to Roy Bell has no relevance to Part VI of the Planning Act and although the Department published public notice of the permit there was no statutory requirement to do so. It is the Commission's opinion that the appeal period started the date the Department issued the building permit, November 5, 1991. The Commission therefore concludes that the appeal period expired on November 26, 1991, and since it did not receive the letter of appeal until December 2, 1992, the appeal period lapsed. Therefore, the Commission has no jurisdiction to decide this matter.
Therefore, the Commission vacates the appeal and will not issue an order.
DATED AT CHARLOTTETOWN, PRINCE EDWARD ISLAND, this 8th day of July, 1992.
BY THE COMMISSION:
John L. Blakney, Vice-Chairman
Anne McPhee, Commissioner
Myrtle Jenkins-Smith, Commissioner
