Dockets: LA99009, LA99010, LA99012
Order LA00-04IN THE MATTER of appeals by George R. Schurman, Rick Roberts and Kevin W. Murphy against certain decisions made by the Minister of Community Services and Attorney General.
BEFORE THE COMMISSION
on Friday, the 18th day of February, 2000.
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Mary Burge, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Preliminary Matter
3. Discussion
4. Commission's Authority
5. Findings
6. Disposition
Order
Appearances & Witnesses 1. For the Appellants:Witnesses:
George R. Schurman
Rick Roberts
Donald Deacon
David Morrison
Harriet Meecher
Written Submission filed by Shawn A. Murphy, Q.C., legal counsel on behalf of Appellant Kevin W. Murphy2. For the Respondent:
Witnesses:
Donald Walters
Alan Parks3. For the Developer:
Legal Counsel:
Kevin J. Kiley
Reasons for Order
1. IntroductionThe Appellants in this matter have appealed pursuant to Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. P-8.
The Appellants are:
George R. Schurman - identified as Appellant Schurman, Commission Docket LA99009;
Rick Roberts - identified as Appellant Roberts, Commission Docket LA99010; and
Kevin W. Murphy - identified as Appellant Murphy, Commission Docket LA99012.
The Appellants are appealing certain decisions by the Minister of Community Services and Attorney General (the Respondent) to issue building permits to Catherine McKinnon (the Developer) for property number 91868 located on Route 6 in the Community of Stanley Bridge.
The Community of Stanley Bridge is an unincorporated area with the Respondent having responsibility for the issuance of building permits under the authority of the Act and the Planning Act Regulations (the Regulations).
Appellant Schurman and Appellant Murphy have appealed a decision by the Respondent to issue a building permit to the Developer on May 25, 1999 to construct a two storey barn style structure with dimensions of 60 feet long by 40 feet wide - building permit number PBF-133-99 (Exhibit R16). The structure is to be used as an entertainment theatre. Their appeals are contained in Exhibits A1.1 and A3.1 respectively.
Appellant Roberts has appealed the Respondent's decision to issue building permit number PBF-133-99 and also the Respondent's decision on May 25, 1999 to issue building permit number P-134-99 (Exhibit D2) to relocate a storage building having dimensions of 34 feet long by 14 feet wide on the same parcel. This appeal is contained in Exhibit A2.1.
During the course of the hearing, the local area has been characterized as an area of mixed land use, with commercial operations interspersed among residential land uses. The Developer's property contains an existing craft shop and restaurant.
The land owned by Appellant Murphy, property number 92726, is undeveloped.
Appellant Schurman owns property number 91900 and the land is used for residential purposes.
Appellant Roberts owns property number 91884 and the land is used for residential purposes.
The Commission heard the appeals over a four day period - January 12, 13, 17 and 19, 2000.
For administrative purposes the hearings for the appeals filed by the Appellants in this matter were consolidated.
2. Preliminary Matter
A. Issue
At the commencement of the hearing, legal counsel for the Developer raised an objection to allowing the appeal by Appellant Murphy to proceed.
The Developer takes exception to the fact that legal counsel for Appellant Murphy filed a written submission (Exhibit A3.2) with the Commission just prior to the hearing, and did not attend or have representation at the hearing before the Commission. The Developer argues that the written submission, including the evidence and arguments contained therein, should be ruled inadmissible and the appeal dismissed because Appellant Murphy was not present to provide sworn testimony and be subject to questioning on that testimony and the written submission.
B. Commission Disposition
The Commission considered this matter and decided that as Appellant Murphy did not attend or have representation at the hearing, thereby denying the other parties the opportunity to examine him in respect to his arguments and evidence, his appeal should not be allowed to proceed.
This appeal is hereby dismissed.
3. Discussion
A. The Appellants
Appellants Schurman and Roberts, for reasons set out in their submissions to the Commission, contend that the Respondent erred in issuing the subject permits as the proposed entertainment barn and relocated storage building fail to comply with a number of provisions of the Regulations.
Central to the position of the Appellants is their assertion that the development will and has had an adverse impact on their use and enjoyment of their residential properties. In addition, the Appellants contend that permits should not have been issued as the storage building was moved on the site, and construction of the barn was commenced before the required permits were issued.
The Appellants are seeking the quashing of the permits and the subsequent removal of the subject buildings.
B. The Respondent and the Developer
The Respondent and Developer argue that the building permits were issued in compliance with the Regulations and therefore the appeals should be dismissed.
4. Commission's Authority
The Commission, as an appellate body, has the same decision making power as the tribunal at first instance (i.e. the Minister) within the Regulations that existed at the time of an application. The Commission does not have absolute powers and is bound by the law. In this case, the Commission is bound by the Regulations which set out the necessary requirements for development approval.
As the Commission has stated in previous decisions, appeals under Section 28 of the Act are by way of a hearing de novo. That being the case, the Commission is entitled to substitute its decision for the one appealed from. However, the Commission does not have unfettered discretion to do so, and ought not to interfere with the decision appealed from if that decision is not an unreasonable one within the provisions of the legislation or regulation. In other words, the Commission ought not to substitute its decision for that of the body appealed from if the original decision was reasonable. The question then becomes: Did the Respondent make a reasonable interpretation in the application of the applicable legislation and/or regulations?
5. Findings
From the Notices of Appeal and throughout the hearing, the Appellants contested the issuance of the building permits based on requirements contained in sections of the Planning Act Regulations and the Planning Act Coastal Area Regulations. The Commission's decision on each of these grounds for appeal is as follows:
A. Planning Act Regulations
1. Development without a permit
12. Subject to section 12.1, no person shall without first obtaining a building permit therefor issued by the Minister
(a) commence the construction of any building or structure;
…
(c) move or relocate any building or structure, either by
…
(ii) changing the location of a building or structure on a lot; or
…
The Appellants argue that the Respondent had no authority to issue the subject permits as the development had been commenced and the building relocated on the site, prior to the permits being issued.
The Respondent acknowledges that the construction had been started and the building moved before permits were issued. However, the Respondent takes the position that the application to develop the entertainment barn and to move the storage building met all the provisions of the Regulations and that they, therefore, were required to issue the permits. The Developer concurred with the Respondent's position.
The Respondent also submits that, as a matter of policy, they do not penalize a party for developing without a permit – but work with the party to insure compliance.
On this matter, the Commission interprets the Regulations to support that where a development complies with the Regulations, a permit will be issued. In considering the Appellants' arguments, the Commission has not found anything in the Regulations that prevents a permit being issued after the commencement of the development activity.
The Appeals cannot, therefore, succeed on the ground that development activity was commenced before the required permits were issued.
The fact that development is commenced or buildings relocated on sites without the requisite permits does, however, raise a serious concern with the Commission. The Commission believes that the Respondent's policy in not considering penalties for those who do start development without permits establishes a dangerous precedent, by creating a sense among the public that construction commenced without a permit may be condoned and, in fact, may expedite the approval of a permit. The Commission wishes to be clear that developing without a permit is a violation of the Act and such action should be treated accordingly. The Commission also believes a move to properly deal with such violations should include an appropriate public information process to ensure that people are aware of the permit requirement.
2. Revocation of Permits
14. Notwithstanding subsection 13(1), the Minister may, for good and sufficient reason, revoke or cancel a building permit within twelve months of date of issue if
…
(b) construction has commenced on a location contrary to the provisions of these regulations; or
(c) any permit required under any other provision of law has not been obtained.
The Appellants argue that the development did not comply with the Regulations and therefore the permits should be revoked.
The Respondent and Developer take the position that this section is not applicable.
The Commission finds that this section is not relevant to the facts before it, therefore the appeals will not be allowed on this ground.
3. Compliance with other Regulations and Impacts
15.(1) No building permit shall be issued if the proposed building structure, or its alteration, repair, location or use or change of use
(a) does not conform to these regulations, other regulations adopted pursuant to the Act or the relevant sections of the Environmental Protection Act, the Fire Prevention Act R.S.P.E.I 1988, Cap. F-11, the Lands Protection Act, the Provincial Building Code Act R.S.P.E.I 1988, Cap. P-24, or the Roads Act;
…
(b) would have a detrimental impact; or
(c) would result in a fire hazard to the occupants or to neighboring buildings or structures."detrimental impact" means any loss or harm suffered in person or property in matters related to public health, public safety, protection of the natural environment and surrounding land uses, but does not include potential effects of new buildings or developments with regard to
(i) real property value,
(ii) competition with existing businesses,
(iii) viewscapes, or
(iv) development approved pursuant to subsection 9(1) of the Environmental Protection Act, R.S.P.E.I. 1988, Cap. E-9:
While Appellant Schurman cited clauses 15(1)(b), (d) and (e) of the Regulations in his Notice of Appeal, these Regulations were amended on January 5, 1999 to the above noted wording. The arguments by the Appellants did, however, focus on the amended clauses 15(1)(a), (c) and (d) of the Regulations as presented above.
The Appellants take the position that the proposed development does not meet the Regulations, nor does it comply with the Environmental Protection Act and the Fire Prevention Act. Further, the Appellants contend that the proposed development poses a threat to the natural environment, public health and is a fire hazard.
The Respondent states that the provisions of Section 15 were considered and the development satisfies the provisions of all other relevant statutes and regulations. The Respondent submits that the development would not impact adjacent land uses in a way that would warrant denying the permits.
The Respondent further states that if the Appellants believe the development is creating a nuisance in noise, dust or jeopardizes public health or safety, the Appellants should contact the appropriate Departments having jurisdiction to seek action under the regulations and standards of those Departments. The Respondent contends that these issues are under the mandate of other government Departments and, therefore, matters over which they have no authority.
In considering clauses 15(1)(a) and (d) of the Regulations, the Respondent's representatives state that they rely entirely on other Departments for their respective expertise. In the exercise of the authority under subsection 15(1) of the Regulations, the evidence of the Respondent's representatives supports the fact that the Respondent sought input from a number of sources prior to issuing the building permits. For example, Exhibits R11, R12 and R13 indicate that the Respondent received comments from Environmental Health, the Provincial Fire Marshals Office and the Department of Technology and Environment, respectively. In addition, the Respondent states that information on site access, prepared in 1996 by the Department of Transportation and Public Works, was also relied upon. According to the Respondent's representatives, using input from other Departments is normal procedure when dealing with applications of this type.
The Respondent used the information from the other Departments to determine that clauses 15(1)(a) and (d) of the Regulations are satisfied. During the hearing the Respondent led no evidence that any other form of analysis was undertaken by them in their consideration of clauses 15(1)(a) and (d) of the Regulations.
In considering whether compliance with clauses 15(1)(a) and (d) was achieved, the Commission notes that while the Appellants put forward numerous allegations that these clauses were not complied with, they did not provide any actual evidence of non-compliance. On the other hand, the Respondent brought forward substantial evidence that the requirements under these clauses had been properly considered and endorsed by the Departments with the expertise and jurisdiction. The Commission therefore concludes that the provisions of clauses 15(1)(a) and (d) were properly addressed and complied with by the Respondent in issuing the permits.
As for compliance with clause 15(1)(c) of the Regulations, the Appellants argue that the development will and is having a negative impact on the use and enjoyment of their property.
On this issue, the Respondent submits that they considered such matters as public health, public safety and the natural environment. The Respondent states that with respect to impact on surrounding land uses, they reviewed the proposed development within the scope of the Regulations and, in doing so, considered only those Regulations which are measurable to ensure compliance.
As an illustration of their approach in considering impacts on surrounding land uses, the Respondent stated that if noise or dust was to be considered, it would have to be to such a degree that it would be an environmental hazard as deemed by the Department of Health or the Department of Technology and Environment. It would then be considered an issue under detrimental impact because it could be measured against established standards as to the possible impact on the health of a person. The Respondent also used an example where during construction, runoff from a development may pose an impact on surrounding land use and this would be a matter of environmental concern and would be addressed by the Department of Technology and Environment.
The Respondent notes that large segments of Prince Edward Island, including Stanley Bridge, do not have land use plans and associated zoning and development by-laws. Planning and development matters in these areas are under the jurisdiction of the Act and Regulations which, in turn, provide that mixed uses may locate adjacent to each other. The Respondent therefore contends that people in these unplanned areas must be prepared to have conflicting land uses locate adjacent to their property, with related impacts. The Respondent points out that this fact is also identified in notes attached to the Building Permits (Exhibit R16 and Exhibit D2) which state: This permit has been issued in a geographic area which does not have land zoning. The area may include existing or future residential, agriculture, commercial, industrial, forestry, tourism, fishing, aquaculture or institutional uses which may influence the use of the site for which the permit has been issued.
The Respondent argues that the issues raised by the Appellants, concerning their use and enjoyment of their property, are not factors which are measurable within the Regulations and therefore not factors that they consider.
In addressing this clause of the Regulations, the Commission considered, as required, whether the proposed building structure, or its location or use or change of use will have a detrimental impact. Detrimental impact in the case of the Regulations is defined as: any loss or harm suffered in person or property in matters related to public health, public safety, protection of the natural environment and surrounding land uses.
The Commission believes the evidence supports that the Respondent properly considered those matters within detrimental impact relating to public health, public safety and protection of the natural environment. However, the Commission is of the opinion that the Respondent did not adequately consider the remaining provision of detrimental impact – protection of surrounding land uses.
The Commission believes the Respondent's approach in applying this provision is flawed, and finds that there is an obligation on the issuing authority to consider the effect of a proposed development on surrounding land uses, with a view to the protection of those surrounding land uses. The degree of any anticipated interference or disturbance of a neighboring land owner's enjoyment of his property must be considered. In this case, the Respondent did not do so.
When the Commission considers the objects of the Act as defined in Section 2 of the Act and the definition of detrimental impact within the scope of the Regulations, the Commission is of the opinion that clause 15(1)(c) requires the Respondent to consider potential impacts on neighboring properties when determining whether a permit should be granted. It seems clear from the wording of this clause and the supporting definition that the Lieutenant Governor in Council, in drafting the clause, contemplated that the Respondent would have to give consideration to whether a building structure, its alteration, its repair, its location, its use or its change of use would have a detrimental impact on among other things – surrounding land uses.
In reaching this conclusion, the Commission understands that in the end, any anticipated impact on surrounding land uses must be reasonably assessed by the issuing authority, with the degree or level of any anticipated interference or disturbance to surrounding land uses determining whether clause 15(1)(c) becomes operative. The "degree" and "level" aspect of the assessment is, therefore, key as the Commission does not believe the intention of this clause is that no impact on the surrounding land uses will be permitted. Such an interpretation would be counter to basic land use planning principles which acknowledge that all development has some impact on neighboring properties.
The Commission believes that the disturbance and inconvenience experienced by the Appellants in this case is very real and cannot be discounted – and we have sympathy for how this has impacted their lifestyle. However, when considering these impacts, the Commission must also be cognizant of the mix of existing land uses in the immediate area and the level of existing commercial activity on the Developer's property prior to the most recent additions. The Commission also must consider the fact that the involved area does not have a land use plan and associated zoning and development bylaws and, as a result, is subject to less restriction and control on development under the provisions of the Regulations (e.g. – mixed land uses being able to locate on adjacent properties).
The Commission therefore concludes that, while the Appellants' use of their land has been negatively impacted, the development covered by the permits being appealed does not unreasonably impact on the surrounding land uses given the circumstances existing in this area. As a result, the Commission finds that there is not detrimental impact to surrounding land uses within the context of its meaning and application within the Regulations.
For these reasons the appeals will not succeed on this ground.
4. Septic Tank Installation
19. No person shall commence the construction or installation of any septic tank or other means of sewage disposal unless the construction or installation conforms to the requirements imposed by the Sewage Disposal Regulations made under the Environmental Protection Act R.S.P.E.I. 1988, Cap. E-9.
The Appellants take the position that the existing sewage treatment system is not sufficient to handle the existing development or the proposed development. The Appellants complained of smell emanating from the pumping of the system. The Appellants also submit that the practice of pumping the waste from the system and emptying it into the Cavendish municipal system poses a threat to the public health and the environment.
The evidence of the Respondent is that they considered this provision and that the system is approved by the Department of Technology and Environment. The Respondent and Developer argue that issues related to the sewage treatment system are matters which are regulated under the Environmental Protection Act Sewage Disposal Regulations and therefore not matters which the Commission can consider.
As the Appellants did not produce any evidence to support their allegations that the sewage system is not adequate for the development, the Commission finds this ground must fail.
5. Set back
20. No building shall be erected within seventy-five feet of the mean high water mark of any river, stream or other body of water.
Appellant Schurman contends that the new structure and the structure moved to the site do not conform with the 75 foot setback from the mean high water mark.
The Respondent states that the distance was measured and it is 115 feet.
The Commission finds that Appellant Schurman has not presented any evidence to support this contention, and therefor the appeals will not be allowed on this ground.
6. Conditions of a Permit
23. (1) The Minister may issue a building permit subject to conditions including such conditions as he may consider necessary to ensure compliance with these regulations.
(2) Failure to comply with any conditions imposed under subsection (1) constitutes a contravention of these regulations.
The Appellants contend that the failure to comply with several conditions has led to a contravention of the Regulations and therefor the permits should be revoked.
The Respondent and Developer contend that all provisions of the Regulations have been satisfied.
The Commission finds that the Appellants have presented no evidence to support their contention that the conditions in permit PBF-133-99 have not been met. Permit P-134-99 does not include any additional conditions. This ground is, therefore, without merit.
7. Parking
44. The following provisions apply in respect of the erection of any building or structure:
…
(g) (i) off-street parking and loading areas shall be provided in accordance with the following table:
…Auditorium, theatre, church or hall – 1 space for each 6 seats
The Appellants argue that there is not sufficient space for adequate parking and when the parking lot is full, cars park on the shoulder of the highway causing potential traffic problems. The Appellants focused on the total commercial use of the property and argued that when this is taken into consideration there is not enough parking.
The Respondent argues that the parking lot was measured and, in accordance with Section 44 of the Regulations, there is an adequate number of spaces for off street parking. The Respondent's contention is there are 38 spaces or 1 space for every 6 seats. As to the Appellants' allegation that automobiles park on the shoulder of the road when the parking lot is full, the Respondent contends that this is not a matter under the Act – but a matter for the police to enforce. The Respondent also relied on the Developer's commitment that the operation of the entertainment barn will be restricted to times when the other commercial operations which exist on the property are not open.
The Commission finds that the Appellants did not provide any evidence to support their contention. The appeals will not be allowed on this ground.
B. Planning Act Coastal Area Regulations
8. Buffer
2.7(1) Commercial and tourism operations may be permitted to locate within 1000 feet of the shore subject to the provisions of section 2.6.
(2) Where access to a commercial or tourism operation is directly from the scenic byway, a buffer, a minimum of 30 feet in width, of mixed tree and shrub species, shall be established where the development is adjacent to the scenic byway and resource lands.
(3) A buffer, a minimum of 15 feet in width, of mixed tree and shrub species, shall be established between any commercial or tourism operation and an adjacent road or residential land parcel.
Appellant Schurman submits that there are resource lands adjacent to the proposed development referring to the aquaculture operations taking place in the Stanley River. The Appellant also submits that the development is adjacent to the scenic byway and therefore a 30 foot buffer is required pursuant to subsection 2.7(2).
The Respondent takes the position that, while there is no definition of resource lands in the Regulations, they have traditionally defined them to be agriculture and forestry lands. They therefore do not believe there are any resource lands adjacent to the development and, as a result, subsection 2.7(2) does not apply. The Respondent submits that under subsection 2.7(3) a 15 foot buffer is required and will be established by the Developer. The Respondent also states that there is no provision as to when this buffer is to be established.
The Commission has given consideration to the arguments presented by the parties and finds that, in the absence of a definition of resource lands, the Appellant may arguably have some basis for taking the position that the aquaculture operations in the Stanley River constitute resource lands and, therefore, subsection 2.7(2) should apply. However, the Commission finds that this subsection is poorly constructed and not clear as to where the buffer would be established, if it had to be established.
As a result, the Commission is of the opinion that subsection 2.7(3) provides a much clearer approach to what must be done by means of a buffer to mitigate the impact of a commercial development on adjacent residential land parcels. Following from the provisions of this subsection, the Developer must develop a fifteen foot buffer between the development and all residential land parcels. In the spirit of the purpose of this subsection, this buffer should be developed in the spring of 2000 and consist of trees of sufficient size to actually screen and separate the land uses. Specifically, the buffer must be developed around the perimeter of the Developer's property where the property is adjacent to residential land parcels. Using Exhibit R2, the Commission believes this buffer should extend approximately 65 feet, running from the roadside of the Developer's property toward the water, along the East side yard boundary separating properties number 669929 and 91868. In addition, a 15 foot buffer should be established along the roadside of the property line of the Developer's property to adequately buffer the development from property numbers 92726 (Murphy) and property number 91884 (Roberts). The buffer should also be extended along the West side yard of property number 91884 (Roberts) also separating it from the Developer's property.
While the required development of the subsection 2.7(3) buffer has yet to be carried out, the Commission finds that the provisions of section 2.7 have not been breached and, therefore, the appeals will not be allowed on this ground.
9. Viewscapes
2.8(3) In any Scenic Viewscape Zone, no structure shall be placed or erected closer than 200 feet to the roadway along which the scenic viewscape identification runs.
Appellant Schurman argues that the development is located within the Scenic Viewscape Zone and therefor the development is not adequately set back from the roadway.
The Respondent contends that the development is not within this zone and therefore this section is not applicable.
The Scenic Viewscape Zone is outlined in map form in Schedule A of the Regulations.
The Commission finds that the development is not within the Scenic Viewscape Zone and therefore the set back provisions do not apply.
The appeals will not be allowed on this ground.
10. Coastal Area Review Committee
20.(4) The Lieutenant Governor in Council may appoint a Coastal Area Review Commission which shall advise the Minister with respect to the matters described in subsections (1) to (3) and which shall, at the direction of the Minister, make recommendations to the Minister on other matters pertaining to subdivision and development in the coastal area. (EC159/92; 247/92)
Appellant Schurman contends that the Lieutenant Governor in Council did not appoint a Commission and therefore the provisions of this subsection have not been complied with.
The Respondent contends that the Lieutenant Governor in Council is not required to appoint a Coastal Area Review Commission and therefore this section is not applicable.
The Commission finds that the provision of establishing a Coastal Area Review Commission is not mandatory and this section is not applicable to the case at hand.
The Appeals will not be allowed on this ground.
11. Develop without a Permit
21. No person shall commence development on a lot or parcel of land without first having obtained a permit. (EC159/92)
The Arguments by the Appellants and the Respondent are the same as those canvassed regarding non compliance with section 12 of the Planning Act Regulations.
For the same reasons as set out in the Findings section (A1) of this Order, the Commission finds that the appeals will not be allowed on this ground.
12. Site Development Agreement
26. In issuing a permit, the Minister may require the applicant to enter into a site development agreement …
The Appellant submits that the Respondent should have entered into a site development agreement with the Developer.
The Respondent contends such an agreement is not required.
It is the Commission's opinion that this is a discretionary decision on the part of the Respondent. In this case the evidence appears clear that the Respondent did not require such an agreement and, therefore, the provisions of this section are not applicable.
The appeals will not be allowed on this ground.
13. Erosion rate
30(1) No buildings or structures shall be constructed on a lot or existing parcel of land closer to the beach than
(a) the distance determined by multiplying the annual erosion rate for that shoreline by 60, or
(b) 75 feet
whichever is greater, measured from the top of the bank to the nearest exterior part of the proposed building or structure.
The Appellants argue that the buildings do not meet the required set back from the beach.
The Respondent submits that the erosion is minimal along the bank and therefore the required setback is 75 feet. The development complies with this setback.
The Commission finds that the Appellants have not provided any evidence to support their allegations. The appeals will not be allowed on this ground.
14. Set Back
32 (1) No building or structure having a proposed agricultural or industrial use shall be constructed within 150 feet of any beach, watercourse or wetland measured from the landward boundary of a beach or a wetland or the high water mark of a watercourse to the nearest exterior part of the building or structure.
…
(3) This section does not apply to buildings or structures used for fishing or bait sheds, aquaculture operations, boat launches, structures or buildings on a wharf or wharf structures, but the Minister, in issuing the permit, may stipulate that the building or structure be located at some fixed distance from the watercourse or wetland.
The Appellants argue that the development is a tourism operation and as tourism is an industry, the development must be for industrial use. The Appellants contend that the development fails to meet the required set back provisions.
The Respondent states that the development is used for commercial purposes and not industrial use and therefore this subsection is not applicable.
The Commission believes that there can be no disagreement with the Appellants' contention that tourism is, in a generic sense, an industry. However the more pertinent question is whether this development is for industrial use.
Industrial is defined in the Regulations and means premises in or from which goods or materials are manufactured, processed, assembled or extracted; or premises from which wholesale trade is carried on, including warehousing.
The Commission finds that the proposed development is not for industrial use and therefore the provisions of this section are not applicable.
The appeals will not be allowed on this ground.
15. Consulting Adjacent Property Owners.
In addition to the arguments by the Appellants that various sections of the Regulations were not complied with, the Appellants also argue that the adjacent property owners were not consulted by the Respondent before the permits were issued.
The Respondent argues this is not a requirement under the Act or Regulations.
The Commission finds that there is no requirement in the Act or Regulations for the Respondent to notify adjacent land owners of permits being issued. Therefore as there is no breach of the Regulations, the appeals will not be allowed on this ground.
Although not required by the Act or Regulations, the Commission is of the opinion that in order for individuals to have knowledge that a decision has been made to issue a permit, and to allow parties a reasonable opportunity to appeal such decisions within the statutorily established time period, there should be some form of public notice.
6. Disposition
For the reasons stated an Order will be issued denying the appeals.
Order
WHEREAS
George R. Schurman, Rick Roberts and Kevin W. Murphy have appealed certain decisions by the Minister of Community Services and Attorney General to issue building permits to Catherine McKinnon;AND WHEREAS
the Commission heard these appeals at a public hearing conducted in Charlottetown on January 12, 13, 17 and 19, 2000 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 Planning ActIT IS ORDERED THAT
1. The appeals filed by George R. Schurman, Rick Roberts and Kevin W. Murphy are hereby dismissed.
DATED
at Charlottetown, Prince Edward Island, this 18th day of February, 2000.BY THE COMMISSION:
Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Mary Burge, 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.