Docket LW95001
Decision LW95-03
BEFORE THE COMMISSION
on Thursday, the 5th day of October, 1995.
John L. Blakney, Vice-Chair
Carl Riggs, Commissioner
James Nicholson, Commissioner
Decision
Contents
Appearances & Witnesses
Reasons for Decision
1. Introduction
2. Discussion & Findings
3. Disposition
DECISION
Appearances & Witnesses
Written submissions were filed by:
1. For the Appellant
Dale Drake
2. For the Department
Adele MacLeod, Departmental Solicitor
Reasons for Decision
1. Introduction
On December 12, 1994, Dale Drake (the Appellant) filed with the Department of Transportation and Public Works (the Department) 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 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 Roads Act Arterial Highway Access Regulations the application was denied.
The Appellant 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 22, 1995 the Commission denied the appeal and issued Order LW95-02 and decided the following:
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 traveling 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 traveling 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.
By letter dated July 5, 1995, the Appellant requested the Commission review Order LW95-02. This request and its supporting documentation were sent to the Department for comment; comments were received from the Department on July 26, 1995.
2. Discussion & Findings
The Appellant argues, in his letter requesting a review of Order LW95-02, that the Commission has not addressed three very important issues.
First, the Appellant submits that Section 17 of the Roads Act Arterial Highway Access Regulations does not apply to his application. Section 17 may be applied to control "new entrance way applications" only and not to control the "change of use" of existing entrance ways. The Appellant argues that unlike the introductory wording in Section 16 which states that it may be applied to both the "placement of a new entrance way" or a "change of use", the wording in Section 17 limits the application of this section only to "new entrance ways".
Second, the Appellant maintains that although the Minister may delegate his authority, the application of the Regulations must be applied fairly and equitably. The Appellant argues that Gary McLure, engineer for the central region, stated during the hearing that the engineers in the other two counties may have approved the application. As the regional engineers act independently in each county, this has led to an unequal application of the law. The appellant questions the integrity of the Department and whether the policies of the Department are applied consistently.
Third, the Appellant argues that the Commission upheld the decision of the Minister based on highway safety, however, the change of use of his access meets all safety criteria. The Appellant contends that regardless of whether access is onto the Arterial Highway or the secondary road, the resulting trip generation on the Arterial Highway will inevitably increase. In addition, by accessing the Arterial Highway from the secondary road, trip generation will increase on both road systems leading to an increase in the risk of accidents at every intersection. The Appellant argues that although the Department stated during the hearing that highway safety was a reason for refusal, the Department did not substantiate this claim.
In response to the Appellant's submission, Adele MacLeod, Departmental Solicitor disagreed with the issues raised by the Appellant and argues that on the basis of law, the Commission is limited to the power to review, rescind or vary the order and not to rehear the matter. Ms. MacLeod argues that no new evidence has been submitted by the Appellant and therefore the Commission should not review this matter. The Appellant may exercise his right to appeal the Commission's decision to the Appeal Division of the Supreme Court of Prince Edward Island.
The Commission has considered the request for review filed by Dale Drake on July 5, 1995. The Commission finds the issues raised in Mr. Drake's request for review are restatements of issues which were canvassed on the original appeal hearing. Mr. Drake has advanced no new evidence nor has he suggested that there has been any significant change of circumstances which would justify a review. Furthermore, Mr. Drake's request for review does not raise any procedural deficiency or breach of the rules of natural justice on the appeal hearing, nor any other matter which would justify a review.
3. Disposition
Accordingly, the Commission is exercising its discretion to deny the Appellant's request for review.Decision
WHEREAS
the Commission issued Order LW95-02 on June 22, 1995;AND WHEREAS
by written notice received by the Commission on July 5, 1995, Dale Drake (the Appellant) requested the Commission review its decision;AND WHEREAS
the Department of Transportation and Public Works (The Department) responded to the Appellant's submission on July 26, 1995;AND WHEREAS
a review may be carried out pursuant to the provisions of Section 12 of the Island Regulatory and Appeals Commission Act;NOW THEREFORE
, pursuant to the Island Regulatory and Appeals Commission Act and the Roads Act1. The Commission is exercising its discretion to deny the Appellant's request for review.
DATED
at Charlottetown, Prince Edward Island, this 5th day of October, 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.