Docket LW96002
Order LW96-02
BEFORE THE COMMISSION
on Thursday, the 8th day of August, 1996.
John L. Blakney, Vice-Chair
Anne McPhee, Commissioner
James Nicholson, Commissioner
Order
Contents
Submissions, Appearances & WitnessesReasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Submissions, Appearances & Witnesses
1. For the Appellant:
The Appellant submitted a written notice of appeal stating the grounds for the appeal and the relief requested. The Appellant instructed the Commission that the submission as contained in the notice of appeal would be his only submission. The Appellant advised the Commission prior to the hearing that he would not be represented at the hearing.2. For Department
Witnesses:
Don Walters, Chief Development Officer
Niall MacKay, Property Development Officer
Reasons for Order
1. Introduction
This is an appeal under Section 12 of the Roads Act Highway Access Regulations by Vernon Myers (the Appellant) against a decision by the Minister Of Transportation and Public Works to deny issuance of an entrance way permit for parcel number 169664 located at Georgetown Royalty.
On March 29, 1996 the Appellant made application for a building permit to construct a cottage on Provincial Property Number 169664 (Exhibit D1). In addition, the Appellant submitted an application for an Entrance Way Permit to access the property for "commercial cottage or cottages" (Exhibit D2).
On May 15, 1996 the Department notified the Appellant by letter that the application for an entrance way permit was denied (Exhibit A1).
The Appellant filed an appeal with the Island Regulatory and Appeals Commission (the Commission) on May 23, 1996 (Exhibit A2).
The Commission heard the appeal at a public hearing on June 25, 1996, after due public notice.
2. Discussion
The Appellant notified the Commission prior to the commencement of the hearing that he would not be attending the hearing and that the Notice of Appeal is to be considered the Appellant's submission.
From the Notice of Appeal, the grounds for the appeal are as follows:
The Parcel #169664 already has access for residential and commercial purpose. The same parcel has a commercial business and has requested if new access was not granted to change use or use existing access road.
In addition the Appellant is seeking the following remedy:
To find parcel #169664 to be a place of residents and business, to find road way in place is for residential and commercial purposes, to approve permit to use existing road or approve new access to develop cottage's. To define limits and definition of an "arterial highway" to which is in question.
The Department's position may be summarized as follows:
During the hearing the Department stated that the property in question is currently being used to cut pulpwood. The Department contends this activity is not considered commercial but is a "cultivation of a natural resource" in accordance with Section 1.(1)(c) of the Regulations. The Department submits that despite the Appellant's claim, the existing access does not serve a commercial property.
In the Department's view the Appellant is proposing to develop a cottage(s) for rental purposes, which is a "commercial operation" in accordance with Section 1.(1)(b) of the Regulations.
Under Section 29.(1)(a) of the Regulations, the Department submits that an entrance way permit cannot be issued for a commercial property if the present use is harvesting pulpwood and the proposed use is rental cottage(s).
The Department requests the Commission deny the appeal.
3. Findings
After giving full consideration to the evidence submitted in this case it is the decision of the Commission to deny this appeal. The reasons for the Commission's decision are as follows:
In deciding this matter, the Commission as an appellate body has the same decision making powers as the tribunal at first instance, i.e., the Minister within the Regulations that exist at the time of application. The Commission does not have absolute powers and is bound by the law.
The Commission understands from the evidence submitted that the subject property is located along Highway #3 which is designated as an arterial highway under Schedule A-1 of the Highway Access Regulations.
According to the Department, the Appellant is currently cutting pulpwood on the property. The definition for "cultivation of a natural resource" is set out in Section 1.(1)(c) of the Regulations:
1.(1)(c) "cultivation of a natural resource" means sowing, planting, stocking, cultivation and harvesting of a primary agricultural, forestry or fishery resource and specifically excludes any form of processing or construction of any building; …
(Emphasis added)
The Commission finds that cutting pulpwood would fit under this definition since it relates directly to the harvesting of a forestry resource.
Since the wood cutting activity is one that involves the cultivation of a natural resource and there is no other activity, the Commission can conclude that no commercial operation presently exists on the property.
The Commission also understands the Appellant has applied for an entrance way permit and a building permit to develop cottage(s) for rental purposes which in the view of the Commission would be considered, for purposes of the Regulations, a "commercial operation". Therefore, if the building permit for the rental cottages were approved then the permit would be issued for a commercial operation.
Where "commercial operation" is defined by the Regulations as:
1.(1)(b) "commercial operation" means any activity involving the display or sale of goods and services or the use of a parcel of land for any of the following: financial services and financial institutions, business offices and other offices, studios, theatres, restaurants and clubs, health and recreation centres and facilities;
It is the Commission's opinion that the proposed use of the subject property for rental cottage(s) would effectively change its use and establish a new use in accordance with Section 1.(1)(a) of the Regulations. Section 1.(1)(a) states:
1.(1)(a) "change of use" means the change in use of a parcel of land from one use to another, or intensification of use resulting in an increase in the number of average weekday vehicle trips, but does not include
(i)the expansion of a permanent year round single family residence, the sole purpose which is to permit a parent or parents of a principal occupant to reside on the premises;
(ii) the change in use of a parcel of land from an existing commercial operation or an existing industrial operation to residential usage where the number of average weekday vehicle trips would be less than the average weekday vehicle trips associated with the existing operation;
(iii)non-residential expansion of a farm where, the subject expansion, the parcel of land would continue to be a farm; or
(iv)a home occupation;
Pursuant to the provisions of Section 20.(1)(a), the Minister may not issue an entrance way permit to establish a commercial operation where no existing commercial operation exists. Section 20.(1)(a) states:
20.1 The Minister may issue an entrance way permit to authorize placement of a new entrance way or a change of use of an existing entrance way, to a portion of an arterial highway outside of an area that has been designated for infilling in Schedule "A-3", except no entrance way permit shall be issued
(a) to establish a commercial operation, other than a home occupation, or an institutional operation on a parcel of land where there is no existing commercial operation of institutional operation respectively; …
(Emphasis added)
Therefore, the Commission must conclude that building cottage(s) for rental purposes would establish a new commercial operation and pursuant to Section 20.(1)(a) an entrance way permit cannot be issued to establish an entrance way to serve a new commercial operation.
The Commission finds that the Appellant has not put forth enough substantive evidence to support the argument that the Department erred or that the provisions of the Regulations do not apply in this case.
For the above reasons, the appeal is therefore denied.
4. Disposition
For the reasons stated the appeal is denied.
IN THE MATTER of an appeal by Vernon Myers against a decision by the Minister of Transportation and Public Works to deny issuance of an entrance way permit for parcel number 169664 at Georgetown Royalty, dated May 15, 1996.
Order
WHEREAS
Vernon Myers (the Appellant) has appealed a decision of the Minister of Transportation and Public Works to deny an entrance way permit to Provincial Property Number 169664.AND WHEREAS
the Commission heard the appeal at a public hearing conducted in Charlottetown on June 25, 1996 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 ActIT IS ORDERED THAT
1. The appeal is denied.
DATED
at Charlottetown, Prince Edward Island, this 8th day of August, 1996.BY THE COMMISSION:
John L. Blakney, Vice-Chair
James Nicholson, Commissioner
Anne McPhee, 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.