Docket LW98001
Order LW98-01

IN THE MATTER of an appeal by Mary I. Kelly against a decision by the Minister of Transportation and Public Works, dated July 3, 1998.

BEFORE THE COMMISSION

on Thursday, the 10th day of September, 1998.

Wayne D. Cheverie, Q.C., Chair
Arthur Hudson, Commissioner
Weston Rose, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1. For The Appellant

Witness:
Mary I. Kelly

2. For The Respondent

Witness:
Niall S. MacKay

Reasons for Order

1. Introduction

Mary I. Kelly (the Appellant) has appealed a decision made by the Minister of Transportation and Public Works (the Minister) on July 3, 1998 to deny an entrance way permit for property number 178426 located at Bristol, P.E.I.

This appeal was filed with the Island Regulatory and Appeals Commission (the Commission) on July 16, 1998 pursuant to the Roads Act (the Act) R.S.P.E.I. 1988, Cap. R-15, Highway Access Regulations.

After due public notice the Commission heard the appeal on August 26, 1998 in Charlottetown.

2. Discussion

The Appellant

The Appellant's position may be summarized as follows:

During the hearing the Appellant stated that she made application for an entrance way permit to access property number 178426 in order to allow her to subdivide a lot off the property and sell the lot for single family dwelling use.

The Appellant states that there are currently two accesses to this property and she wishes to subdivide a parcel which will continue to use one of these accesses.

The Appellant stated that she does not disagree with how the Minister's representative has applied the law, but she disagrees with the law itself. The Appellant contends that allowing this access to permit the development of a single family dwelling would not create a significant increase in traffic, and therefore, her application should be approved.

The Appellant requests that this appeal be allowed and an access permit granted.

The Respondent

The Respondent's position may be summarized as follows:

Mr. MacKay stated that the Appellant's proposal to subdivide the property to create a lot for a single-family dwelling would result in a change of use in the property. As a result, Mr. MacKay submits that under the provisions of Section 20 of the Roads Act Highway Access Regulations no entrance way permit can be granted.

For this reason the Respondent believes that the appeal must be denied.

3. Findings

In deciding this appeal the Commission has considered the submissions of the parties and the provisions of the Roads Act Highway Access Regulations. Based on the evidence before it, the Commission has decided to deny this appeal.

The evidence before the Commission is that the subject parcel of land (property number 178426) is located in Bristol along Highway #2 which is designated by the Highway Access Regulations as an Arterial Highway.

According to Exhibit D2, the Appellant made an application on June 23, 1998 for an Entrance Way Permit. During the hearing the Appellant submitted that it was her intention to subdivide the subject property to create a lot for a single family dwelling. On the Notice of Appeal (Exhibit A1) the Appellant states that there are currently two entrance ways on the property which provide access to the highway. The application supports that the existing entrance ways to the property are to access idle agricultural land and the proposed entrance way will provide access to a single family dwelling.

According to Niall MacKay's letter to the Appellant dated July 3, 1998 (Exhibit D9) this application was denied pursuant to the provisions of section 20(1)(e)(ii) of the Highway Access Regulations which 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

…

(e) to provide an entrance way to a parcel of land created after March 22, 1992 or the date upon which the adjacent highway was designated as an arterial highway, whichever is later, other than to enable

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(ii) the creation of a new parcel of land subdivided from a farm for the purpose of establishing one new single-family dwelling or the creation of a separate parcel of land that includes a single-family dwelling to allow the farmer to retain the dwelling and sell the remainder of the farm, provided that the existing entrance way to the farm is used for access to the new or separate parcel of land and any other entrance way to the new or separate parcel of land is removed.

…

In considering the Appellant's proposal, the Commission has reviewed the provisions of section 20(1)(e)(ii) of the Highway Access Regulations and finds that the application must be denied. The Commission believes that despite the Appellant's contention that her proposal to subdivide the property to develop a single family dwelling would not generate a significant amount of traffic, the Commission is of the opinion that this proposal will create a change in use of the property from idle agricultural land to a residential use and there are no provisions in the Regulations to allow this entrance way to be approved.

As stated by the Commission during the hearing, despite the Appellant's displeasure with the Regulations, the Commission must uphold the law and apply it as it is written. In this case, the facts of the appeal support that the application for an entrance way permit must be denied.

During the hearing the Appellant expressed to the Commission that she felt the Regulations, specifically section 20, were confusing and difficult to understand. On this matter the Commission would be remiss if it did not comment on the Appellant's concerns. In deciding this appeal the Commission has spent a considerable length of time reviewing the Regulations. The Commission agrees with the Appellant's observations and understands the Appellant's concerns. Although we may deal with these Regulations on a frequent basis we do sympathize with the public who must try to comprehend the regulations, and even Departmental representatives who must explain these provisions to the public. With these concerns in mind the Minister's representatives may wish to take this matter under advisement. If one expects compliance with the law then it is only reasonable to produce law in language that is as clear and concise as possible given the subject matter which must be addressed. In any event, although the Regulations here can be described as complicated, even convoluted, we can come to no other conclusion than that the creation of a lot for a single family dwelling on the property in question would be a change of use and, because the owner is not a farmer and the proposed used is not one of the permitted uses set out in the Regulations, and because it is on an arterial highway and is not designated for infilling, an entrance way permit is prohibited by the Regulations.

While the Appellant appears to take exception to the law, 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 Respondent to deny the entrance way permit.

For the reasons stated the appeal must be denied.

4. Disposition

An Order denying the appeal will therefore be issued.

Order

WHEREAS Mary I. Kelly, the Appellant has appealed a decision by the Minister of Transportation and Public Works to deny an entrance way permit to access property number 178426 at Bristol;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on August 26, 1998 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 10th day of September, 1998.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chair
Arthur Hudson, Commissioner
Weston Rose, 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.