Order LW95-02 - LW95001 - Roads Act Appeal - Dale Drake v. Dept. of Transportation & Public Works (Jun 22, 1995)

Docket LW95001
Order LW95-02

IN THE MATTER of an appeal by Dale Drake against a decision by the Department of Transportation and Public Works dated February 16, 1995.

BEFORE THE COMMISSION

on Thursday, the 22nd day of June, 1995.

John L. Blakney, Vice-Chair
James Nicholson, Commissioner
Carl Riggs, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion & Findings

3. Disposition

Order

Appearances & Witnesses

1. For The Appellant

Dale Drake the Appellant

2. For The Department

Adele MacLeod Legal Counsel
Gary McLure Central Regional Engineer,
Department of Transportation and Public Works

Reasons for Order

1. Introduction

This is an appeal under the Roads Act, R.S.P.E.I. 1988, Cap. R-15 by Dale Drake (the Appellant).

On December 12, 1994, the Appellant filed with the Department of Transportation and Public Works an Application for an Entrance Way Permit for property number 173724 located along the Trans Canada Highway at the intersection of the Trans Canada Highway and the Scentia Point Road. The application stated that the access to the property was for the continued use of the farmland and woodland access and to use that same access to serve a proposed single family residence.

The Department completed an evaluation of the application and notified the Appellant on February 16, 1995 that in accordance with Section 17 of the Arterial Highway Access Regulations the application was denied.

Mr. Drake filed an appeal with the Commission by letter dated March 1, 1995.

The Commission heard the appeal by way of a public hearing on May 29, 1995.

On June 5, 1995 the Department submitted additional information pertaining to statistics on trip generation from the Institute of Transportation Engineers.

2. Discussion & Findings

The Appellant argued that his proposal to develop the land should be given special consideration. (Exhibit A5) During the hearing the Appellant provided the Commission with specific details on his plans to establish a residence and develop a portion of the land for farming purposes. He submitted that he has an established access to the Trans Canada Highway approximately 150 feet from the site where he proposes to construct his residence. The Appellant argued that Section 17 should not apply and that pursuant to the provisions of Section 16 an entrance way should be granted. The Appellant submitted that if his appeal is denied then he will be forced to spend between $7,500 and $10,000 to construct a 1200 foot road to access the Scentia Road. That access will cut across the property resulting in a loss of farmland and forest land. The access to the Scentia Road is unacceptable and that the best and most efficient use of the land is to permit access to his proposed residence from the Trans Canada Highway.

In summary, the Department denied the application for an entrance way permit and cited Section 17 of the Arterial Highway Access Regulations as the reason for denial.

Notwithstanding any other provision of this Part, where a parcel of land is adjacent to an arterial highway and a lower class of highway, the Minister may determine that no entrance way permit shall be issued to allow access to the arterial highway.

The Commission has reviewed the Roads Act and Regulations, and the arguments of the Appellant and the Respondent.

In deciding this matter the Commission is guided by the provisions of Sections 16 and 17 of the Arterial Highway Regulations.

The evidence before the Commission confirms that the property in question fronts on the Trans Canada Highway which is an arterial highway designated under the Roads Act. Part of the property also borders on the Scentia Road which is a paved local highway and designated a "lower class of highway" under that same Act.

The Department submitted during the hearing that the purpose of the Arterial Highway Regulations is to limit access to the arterial highway in order to ensure the rapid movement of goods and services and to protect the health and safety of the travelling public. During the hearing Gary McLure stated that the purpose of the Regulations is to limit the need for speed zones which would impede the flow of traffic.

The Appellant raised a number of issues pertaining to the environment and the proper use of the parcel of land, and argued that the Minister should have considered these factors and allowed the access.

In deciding this matter the Commission finds that the issues respecting the development of the Appellant's land do not outweigh, in this instance, the need to preserve the integrity of the arterial highway system. The Commission finds that allowing the Appellant to access the arterial highway other than for the "cultivation of a natural resource" would not be in the interest of maintaining an efficient highway system for the travelling public and the transport of goods and services. The Commission agrees with the Department that this is the very purpose for regulating the arterials in the Province. The Commission also finds that although the addition or intensification of one access to the arterial might be limited, the proliferation of a number of accesses or the intensification of a number of existing accesses would. The Commission believes the integrity of the highway system and the safety of the travelling public is paramount. It is the Commission's view that the need to maintain an efficient arterial system over the long term must outweigh the objectives of planning the development site.

The Commission finds that there is insufficient reason to overturn the decision of the Minister and for the above reasons denies the appeal.

The Commission understands from the submission by the Appellant that he is not without other options to locate his residence and access the property from the Scentia Road, albeit not his preferred choice.

3. Disposition

An Order denying the appeal will therefore be issued.

Order

WHEREAS Dale Drake (the Appellant) appealed a decision by the Department of Transportation and Public Works to deny an entrance way permit to property number 173724;

AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on May 29, 1995 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 Roads Act

IT IS ORDERED THAT

1. The appeal is hereby denied;

DATED at Charlottetown, Prince Edward Island, this 22nd day of June, 1995.

BY THE COMMISSION:

John L. Blakney, Vice-Chair

James Nicholson, Commissioner

Carl Riggs, 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.