Docket LW94001
Order LW95-04
BEFORE THE COMMISSION
on Tuesday, the 12th day of December, 1995.
Linda Webber, Chair
Clayton Bulpitt, Commissioner
Debbie MacLellan, Commissioner
Order
Contents
APPEARANCES &WITNESSESREASONS FOR ORDER
1. Introduction
2. Discussion & Findings
ORDER
Appearances & Witnesses
1. For the Appellant:
Alex Calder, Appellant
Marie Calder, In support of Appellant
2. For the Department of Transportation and Public Works
Kent Smith, Traffic Operations Technician
Reasons for Order
1. Introduction
This is an appeal under the Roads Act, R.S.P.E.I. 1988, Cap. R-15, by Alex Calder (the Appellant).
On November 8, 1994 the Appellant Alex Calder filed with the Department of Transportation and Public Works an Application for an Entrance Way Permit for Property No. 219139 on Route 1, the Trans Canada Highway. The application stated that access to property was sought for a single family dwelling or cottage.
The Department responded by letter dated November 18, 1994 turning down the application, citing section "4b" of the Roads Act Arterial Highway Regulations.
Mr. Calder filed an appeal with the Commission by letter dated November 28, 1994.
By Order dated April 27, 1995 the Commission dismissed the preliminary objection raised by the Minister in connection with the Commission's jurisdiction to hear the appeal.
On August 9, 1995 the Commission heard the appeal.
2. Discussion & Findings
Alex and Marie Calder live in Churchill on a lot bordering on the north side of the Trans Canada Highway. They also own the lot of land bordering on the south side of the highway. Both lots are identified by parcel No. 219139. There are three lanes of highway in front of their property.
The Calders state that "...we've always had the idea that at some time we could have a little cottage down by the river...," and when they bought the land in 1971 the law deemed them to have an access and all they required was a building permit. Legislative changes result in their now having to obtain an entrance way permit under the Roads Act before they can obtain a building permit.
In the past the Calders had used the property -- by way of an existing entrance way with a culvert - primarily to walk down through the woods to the river at the back of the property, and to lease the land to a local farmer. They now wish to put a cottage or full-time residence on the property but have been denied the required entrance way permit,
The Calders state that they don't feel they are being fairly treated because others on the highway are being allowed access even though they are not. Mr. Calder gave the following as examples of permitted development on the Trans Canada Highway:
1) McQuaid's Motor Home Sales on the Trans Canada Highway at Clyde River. The building permit (Ex. A4) for this development said access was to be by way of Clyde River Road. However, the access appears now to be on the highway (Ex. A6) and a new business, Prince Edward Truck and Equipment Sales, has been added to the same location, using the same driveway. There are three lanes in front of the property. It is three or four kilometers from the Calder property.
"My thought is why would they allow Prince Edward Truck Sales to go in there, they knew the driveway was a violation, it's already been violated before, why would they allow Prince Edward Truck Sales to go in there." [A. Calder, Transcript, p. 7].
2) A machine storage building approved for Sterling Buchanan on the Trans Canada Highway directly adjacent to the Calder's property. It will generate far more traffic than their cottage would generate.
3) A building permit (Ex. A-9) issued dated January 25, 1994, to John H. Reid for a single family dwelling on the north side of the Trans Canada Highway at a three-lane section of the highway. On cross-examination Mr. Calder admitted that this building permit had expired without any building actually being built; the permit was issued as the result of a court order.
4) The New Haven Riverdale Community approval for a building permit for Island Coastal Limited to erect a building on the Trans Canada Highway in New Haven on December 23, 1994. This was not bordering three lanes "but it's on a curve, a very dangerous entrance way", stated Mr. Calder.
5) The Clydebank Bed and Breakfast opened up "this year" on the Trans Canada Highway where there are three lanes.
When asked if he regarded the building of a cottage as "a change of use" Mr. Calder stated:
"No, not really because I'm living on the property, although be it that it's on the northern part so it's my wife and myself that would use the cottage so it's not really a change of use. It is us that's using it (walking on the road down to the river)." [A. Calder, transcript, p. 14]
Mr. Calder further argued that it doesn't make sense to him that he could lease out the forty acres in question, allow trucks ("a hundred or a thousand trucks," [A. Calder, Transcript, p.60]) to take potatoes or trees out and yet he can't put a cottage and have one car going in and out.
The lot in question is forty acres, mostly treed but twelve acres are leased out to a local farmer.
On behalf of the Minister, Kent Smith, Traffic Operations Technician with the P.E.I. Department of Transportation and Public Works, gave evidence. He stated that unless such a property is in an area designated for infilling, or unless the property was already used for the proposed development, it was the Department's view that the Roads Act would not allow the entrance way permit to be issued. He cited s.4 of the Roads Act Arterial Highway Access Regulation, in support of this:
4. Notwithstanding any other provision of these regulations, no entrance way permit shall be issued where the location of the entrance way
(a) would not meet the safe stopping sight distance requirements set out in Schedule B; or
(b) is outside an area designated for infilling in Schedule A-3, and is on segment of highway having more than two traffic lanes;
for any purpose other than establishment of one entrance way to an existing parcel of land, solely for cultivation of a natural resource, where
(c) there is no existing entrance way to the parcel of land; and
(d) no adjacent parcel of land is under the same ownership or control as the subject parcel of land.
He stated that the present use is agriculture/woodland, and personal recreation. Under the Roads Act Arterial Regulations Mr. Calder's application for a house or a cottage is considered a change of use.
Mr. Smith stated that prior to 1992 access to property was governed under the Planning Act. In March of 1992 the Roads Act Arterial Highway Access Regulations were proclaimed and now govern access to all arterial highways.
In front of the property in question the speed limit is 90kmh with one lane east bound and two lanes west bound. It is not an area designated for infilling.
With respect to the "other parcels" that Mr. Calder referred to, Mr. Smith stated the following:
1) McQuaid's Motor Home Sales - There is apparently access being taken to the Trans Canada Highway that was not permitted. However, since the original permit was issued under the Planning Act, not the Roads Act, the Department does not feel it can take action: "...we cannot step in with regulations that were proclaimed in 1992 to deal with something that was - happened in 1988." [K. Smith, Transcript, p. 31]
2) As for the addition/change of new business on the property, Mr. Smith said that the Department did not consider a change from trailer sales to truck sales a different operation: "No, it's retail sales". [Transcript, p.33] A change from one type of commercial to another type is evaluated to see if it's going to result in an increase in the number of trips that will cause harm to the travelling public. When the sign went up the Department looked at it but "there's not much activity there." [Transcript, p.33]
3) The Buchanan property - Under the Regulations, there is no entranceway permit required for a machine storage building.
4) John H. Reid - In order to build he would have had to comply with the Roads Act Arterial Highway Access Regulations. He never got such a permit.
5) Island Coastal - This was not a matter for the Department. The Community issued the building permit.,
6) The Clydebank Bed and Breakfast - It is a home occupation and therefore an entranceway permit is not required.
The rationale behind the Roads Act Arterial Highway Access Regulations were explained by Mr. Smith:
... the Department views that access onto a section of highway having more than two lanes creates many opportunities for hazard and unsafe situations... and therefore when we were developing these regulations, um, it was put in there that nothing be permitted on a section of highway having more than two traffic lanes. [Transcript, p. 50]
The Commission has great sympathy for the position the Appellant finds himself in - owning a lot of land that he is unable to use except in a very limited manner. No doubt the Appellant is one of many people who have purchased but not yet developed property. If they went through all of the proper procedures at the time of purchase to ensure that they would be able to use the land as they might see fit, the change in law will be even more upsetting.
However, there is no guarantee that laws will not change and the Legislature has seen fit to pass the Roads Act and Cabinet to pass the Arterial Highway Access Regulations that now prohibit the Appellant from using his land as he wishes.
While the Appellant named a number of instances that he felt were examples of access permits being given to others in similar circumstances, these have been adequately explained by the Department. The Appellant's real objection here appears to be that he cannot understand why the law would allow a farm machinery storage shed to receive access when his cottage development can't, why it would allow a bed and breakfast to start up -with all the increase in traffic that would entail - but not his one cottage on forty acres, or why the addition of a commercial truck sales operation to an existing trailer sales operation is not considered intensification of use and so is permitted, yet his access to a cottage lot is prohibited for safety reasons.
In all those cases the circumstances - 3 lanes of highway - are the same, but the law allows the other uses described. It also would allow an intensive farming operation on his property, but not a residential home or cottage.
The Commission has as much difficulty as the Appellant in understanding how the rationale of "safe access" is used to justify these different uses.
While the Department states that the overriding purpose of the Regulations is highway safety, the Commission does not see any such purpose from the wording of the legislation. If safety were the issue, then the appropriate indicator would be increased trip generation. That would be a rational basis for analysing the potential problem created by any proposed development or change of use.
Rather than being legislation designed to ensure safe access to the highway, this appears to be legislation designed to encourage industrial/commercial development and discourage residential use. The reasons for this have not been well explained by departmental representatives at the hearing.
Mr. Calder argued that this type of law discriminated against him. It would appear in many ways to do so. However, this does not assist Mr. Calder "in law" in a hearing before the Commission.
The Text Construction of Statutes (2nd Edition) by Elmer A. Driedger (Butterworths, 1983) contains the following comments:
"Neither will the courts deviate from the plain meaning on the ground of injustice or hardship ... the court held ... that the power of Parliament to pass even what might be considered unjust legislation is unimpeachable, provided the language used is open to no other construction. Where the language of a legislature admits of no other interpretation effect must be given to it whatever its consequences." (p.30)
"Where there is no ambiguity in statutory language and the legislative meaning is not obscure, that meaning must prevail even where it leads to an anomalous or discriminatory result." (p. 31)
Therefore, the Lieutenant Governor in Council has the power to enact such a law, has done so, and there appear to be no valid grounds for overturning the decision of the Department to deny the access permit. The law as written supports the actions of the Departmental officials. Departmental personnel appear to have acted reasonably in their interpretation and application of this difficult law.
The Regulations here can be described as complicated, even convoluted. However, while they are difficult to read they are not ambiguous.
We can come to no other conclusion than that the development of a cottage or residence on the Calder property in question would be a change of use and, because it is not one of the permitted uses set out in the Regulations, and it is on an arterial highway with more than two lanes of traffic and is not designated for infilling, an entranceway permit is prohibited by the Regulations.
The Appeal is therefore dismissed.
Order
WHEREAS Alex Calder (the Appellant) appealed to the Island Regulatory and Appeals Commission (the Commission) in written notice dated November 28, 1994, against a decision of the Department of Transportation and Public Works (the Department);
AND WHEREAS the Commission heard the appeal at public hearings conducted in Charlottetown on August 9, 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 dismissed;
DATED at Charlottetown, Prince Edward Island, this 12th day of December, 1995.
BY THE COMMISSION:
Linda Webber. Chair
Clayton Bulpitt, Commissioner
Debbie MacLellan, 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.