Docket: LA00109
IN THE MATTER of an appeal filed by Joan M. Smith against a decision by the Department of Community and Cultural Affairs, dated June 9, 2000.
Order: LA00-08BEFORE THE COMMISSION
on Monday, the 24th day of July, 2000.
Ginger Breedon, Vice-Chair
James Carragher, Commissioner
Arthur Hudson, Commissioner
Order
ContentsAppearances & Witnesses
Reasons for Order
1. Introduction
2. Discussion
3. Findings
4. Disposition
Order
Appearances & Witnesses 1. For the Appellant:Joan M. Smith
Eric Smith2. For the Respondent:
Donald Walters
Sharlene Quinn
Reasons for Order
1. IntroductionThis is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. P-8, by Joan M. Smith (the Appellant).
According to the evidence submitted in this matter, on May 1, 2000 the Appellant made application to the Department of Community and Cultural Affairs (the Respondent) to subdivide two lots from provincial property number 789065 (Exhibit R2). The subject property is located in Cable Head West.
The Respondent notified the Appellant by letter dated June 9, 2000 that this application was denied because the dimensions of the proposed lots do not meet the minimum circle diameter required by the Planning Act Regulations.
By letter dated June 26, 2000 (Exhibit A1) the Appellant appealed this decision to the Island Regulatory and Appeals Commission (the Commission).
After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the appeal on July 20, 2000.
2. Discussion
The Appellant
According to the letter of appeal (Exhibit A1) and the supplementary notes filed by the Appellant (Exhibit A2), the Appellant takes the position that “while the circle diameter of 150 feet cannot be achieved due to the configuration of the land, there is more than adequate space to guarantee a well functioning septic system with 92,000 square feet available”.
The Appellant further submits that the parcel was purchased in 1984 – long before the current regulations were adopted and therefore special consideration should be given to exempt the property from these requirements.
The Appellant requests that the Commission allow her appeal and approve the subdivision as requested.
The Respondent
The Respondent takes the position that the application for subdivision was denied on the basis that it failed to meet the requirements of subsection 37(1) of the Planning Act Regulations. Specifically, the Respondent considered the dimensions of the existing parcel and determined that the minimum circle diameter of 150 feet could not be encompassed within the boundaries of the existing lot and, thereby, the proposed new lots.
The Respondent also submits that they considered the application of a variance to the provisions of the Regulation but determined that the lot did not have sufficient width to support the circle diameter requirements of Section 37(1) even with a commonly accepted variance of 10%.
The Respondent noted that while the Regulations (subsection 37(5)) provide for the exemption from the new lot standards of lots subdivided before the date the new standards came into affect, the involved application here is for two new lots which must meet these standards. As a result, the Respondent submits that they have no discretion in applying the requirements of subsection 37(1) of the Regulations to the proposed subdivision.
For these reasons the Respondent states that the appeal should be denied.
3. Findings
After giving careful and full consideration to the evidence submitted in this case, and upon review of the applicable law, it is the decision of the Commission to deny the appeal. The reasons for the Commission's decision are as follows:
The Commission, as an appellate body, has the power to hear the evidence and arguments presented by both parties and decide whether to allow or dismiss an appeal. The Commission does not, however, have absolute powers and must apply the law as it currently exists.
In this case, the Commission is bound by the Planning Act Regulations, which set out the necessary requirements for subdividing land.
Section 37 of the Regulations is relevant to this case and states:
(1) No approval or permit shall be granted for the subdivision of a lot for residential or non-residential use unless the lot conforms with the requirements set out in Table 1 and Table 2 respectively.
(2) With respect to the minimum circle diameter requirement set out in column (f) of Table 1 and column (e) of Table 2, where applicable, the space encompassed by the circle shall be in a location on the lot which will accommodate an on-site sewerage system.
Table 1 requires that where one (1) dwelling is proposed the minimum lot area must be 25,000 square feet and the minimum circle diameter to be contained within the boundaries of the lot must be 150 feet.
The Commission has heard the evidence on behalf of the Respondent that the minimum circle diameter of 150 feet cannot be encompassed within the boundaries of the lot. While the Appellant had understood one part of the existing lot could contain the minimum circle diameter, she did accept that with a required right-of-way, there is no location on the existing lot that can meet the dimension requirements.
The Commission understands that the provisions contained in the Regulations pertaining to minimum lot size and circle diameter requirements are to assist in the protection of the environment from hazards that may occur from an inadequate or malfunctioning on-site sewerage system.
The Commission also understands the Appellant's position that the proposed lots are of sufficient size to meet the 25,000 square foot lot dimension requirements. The existing lot, according to the Appellant, is approximately 92,000 square feet, which potentially could support three lots. However, the provisions of Section 37 are clear that a lot must also support a circle with a diameter of 150 feet – a requirement which cannot be satisfied given the configuration of the subject property.
The Commission, in considering the Appellant's submission that the property should be exempt from the current size standards, concurs with the Respondent's interpretation and application of the Planning Act Regulations. The proposed new lots cannot be exempted from the size standards.
Although the Commission has sympathy for the Appellant's situation, the Commission finds that the property cannot satisfy the requirements of Section 37 of the Regulations and, therefore, the Minister cannot approve the subdivision.
As a result, the Respondent's decision is affirmed and the appeal is denied.
4. Disposition
An Order to deny the appeal will therefore be issued.
Order
WHEREAS Joan M. Smith (the Appellant) has appealed a decision by the Department of Community and Cultural Affairs to deny an application to subdivide property number 789065 located in Cable Head West;
AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on July 20, 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 Act
IT IS ORDERED THAT
1. The appeal is hereby dismissed.
DATED at Charlottetown, Prince Edward Island, this 24th day of July, 2000.
BY THE COMMISSION:
Ginger Breedon, Vice-Chair
James Carragher, Commissioner
Arthur Hudson, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
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:
(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.