Docket: LA00112
Order LA00-12

IN THE MATTER of an appeal by S. Montgomery Drummond against a decision by the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish and North Rustico, dated July 24, 2000.

BEFORE THE COMMISSION

on Thursday, the 9th day of November, 2000.

Ginger Breedon, Vice-Chair
Maurice Rodgerson, Commissioner
Norman Gallant, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction

2. Discussion

3. Findings

4. Disposition

Order

Appearances & Witnesses

1.    For the Appellant (S. Montgomery Drummond)

S. Montgomery Drummond

2.    For the Respondent (Resort Municipality)

Brenda MacDonald
David McKearney
Alton Glenn

3.    Members of the Public

Stuart Drummond

Reasons for Order

1.  Introduction

This is an appeal under Section 28 of the Planning Act (the Act), R.S.P.E.I. 1988, Cap. P-8, S. Montgomery Drummond (the Appellant). 

According to the evidence submitted in this matter, on June 14, 2000 the Appellant made application (Exhibit R4) to the Resort Municipality of Stanley Bridge, Hope River, Bayview, Cavendish, and North Rustico (the Respondent) to construct four, one-story rental cottages on provincial property number 232892.

The Respondent notified the Appellant by letter dated July 24, 2000 (Exhibit R2) that this application was denied.

By notice of appeal dated July 27, 2000 (Exhibit A1) the Appellant appealed this decision to the Island Regulatory and Appeals Commission (the Commission).

On September 26, 2000, the Commission issued Order LA00-09 with Reasons to dispose of certain preliminary matters raised by the Respondent.

After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the present appeal on October 23, 2000. 

2.  Discussion
The position advanced by the Appellant

The Appellant states that his property, which is the subject of this appeal, is zoned RD2, Resort Accommodations Zone, which permits tourist accommodations such as rental cottages.  In 1993, when he purchased his property, the parcel was already subdivided.  He believes the parcel was last subdivided in 1966, pursuant to a Deed of Conveyance (Exhibit A7).  He submits that Schedule “A” of the Respondent's Zoning & Subdivision Control  (Development) Bylaw (the Bylaw) and Table “A” in subsection 37(5) of the Planning Act Regulations (the Regulations) set out the requirements for the subdivision of a lot.  He points out that he is not seeking an approval for subdivision but a development permit for a use permitted within the zone in which his existing lot is located.  Further, as his lot was subdivided prior to the Bylaw coming into force, he believes his lot should not be subject to the minimum lot size requirements provided for in Schedule “A” to the Bylaw.

To further support his position, the Appellant notes that subsection 37(5) of the Regulations states that the minimum lot size standards set out in Tables 1 and 2 of the Regulations do not apply to subdivisions approved prior to the date on which the regulations came into force.

The Appellant acknowledges that the Respondent informed him, as part of the conditions to a building permit issued to him on May 10, 1995 for construction of a cottage on the parcel, that any future development that intensifies the land use would require connection to the municipal sewer system.  The Appellant submits that the municipal sewer system does not come near his property and, if it did, he would happily hook up to it.  He believes, however, that it is unlikely the system will be extended to his property.

The Appellant requests that the Commission allow his appeal and order that the Respondent issue him a development permit to allow him to construct four, one-story rental cottages on provincial property number 232892.

The position advanced by the Respondent

The Respondent submits that section 4.8 of the Bylaw requires a developer to first obtain a permit for the sewage disposal system from the Department of Community Services (now known as the Department of Community and Cultural Affairs) or the Department of the Environment (now known as the Department of Fisheries, Aquaculture and Environment).  They further submit that section 4.8 prevents them from approving a development permit unless the Department of Community and Cultural Affairs or the Department of Fisheries, Aquaculture and Environment issues a permit for the proposed sewage disposal system. 

The Department of Fisheries, Aquaculture and Environment did not issue a permit for the Appellant's proposed holding tank, as noted in the June 19, 2000 memorandum from Alfie Wakelin (Exhibit R3).  The Department of Community and Cultural Affairs also did not issue a permit as noted in Garth Carragher's response of July 19, 2000 to Brenda MacDonald (Exhibit R3). Section 4.8 therefore left the Respondent with no option but to deny the Appellant's application for a development permit.  The Respondent further notes that it does not issue a development permit unless approval is received from all the relevant government departments. 

The Respondent also submits that section 7.7 of the Bylaw requires all developments within a RD2 zone to be either serviced by central sewer or require the installation of an on-site sewage treatment system.  The Appellant's present application is for a holding tank which is not an authorized sewage system under section 7.7.

The Respondent submits that in the RD2 zone, sites and structures must conform to the standards listed in section 7.4; including the minimum lot area and minimum frontage or lot width provided for under Schedule “A” of the Bylaw.  As the Appellant already has an existing cottage on his land, an additional four cottages would require, under Schedule “A”, 41,500 square feet instead of the 40,000 square feet he already has.

The Respondent submits that section 4.10 of the Bylaw, concerning existing non-conforming lots, only applies where the lot is vacant and a building may be erected.  This occurred in 1995 when the Appellant applied for, and was granted, a development permit for his existing cottage.  The Appellant was only allowed to construct his cottage in 1995 because his lot was “grandfathered”.  The present application for a development permit amounts to a change of use as it would intensify the use of the property and thus the Appellant's present application is not grandfathered. 

The Respondent requests that the Commission dismiss the Appellant's appeal, as its Bylaw would not permit a development permit to be issued on this present application.

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 Bylaw that governs the requirements for development in the Respondent municipality.

The following sections of the Bylaw are relevant to this case:

Section 4.8 states:

Where a development requires the installation of an on-site sewage disposal system, Council shall require that the developer first obtain a permit for the sewage disposal system from the P.E.I. Department of Community Services or Environment prior to issuing a development permit.

Section 7.7 states:

All developments within an RD2 zone shall either be serviced by central sewer services or shall require installation of an on-site sewage treatment system designed and certified by a qualified engineer licensed to practice in the Province.

Schedule “A” of the Bylaw states:

Notwithstanding any other provisions of this Bylaw, no person shall subdivide a lot intended to be serviced by an on-site sewerage system except in conformance with the minimum lot size standards noted in Table 1 and Table 2 below.

The Commission agrees with the position taken by the Appellant that Schedule “A” and Tables 1 and 2 listed under that schedule do not set out the minimum requirements for an on-site sewage disposal system per se.  Rather, a lot which is intended to be serviced by an on-site sewage system shall not be subdivided unless the proposed subdivision conforms with the minimum lot size standards noted in Tables 1 and 2 listed under the schedule.  In the present case, the evidence supports a finding that the lot was already subdivided before the current Bylaw was enacted.

However, notwithstanding the proper applicability of Schedule “A” under the Bylaw, section 4.8 clearly requires approval, by way of a permit, of an on-site sewage disposal system from either the Department of Community and Cultural Affairs or the Department of Fisheries, Aquaculture and Environment before the Respondent is permitted to issue a development permit.  As made evident by Mr. Wakelin's June 19, 2000 memorandum (Exhibit R3), the Department of Fisheries, Aquaculture and Environment would not approve the Appellant's application for a holding tank.  Further, Garth Carragher, Property Development Officer for the Department of Community and Cultural Affairs clearly establishes in a July 19, 2000 faxed note (Exhibit R3) that his Department is not issuing a permit for the proposed on-site sewage system:

As per Alfie's memo dated June 19 / 2000, a holding tank cannot be allowed for this development.

In effect, section 4.8 requires the Respondent to follow a chain of command and delegate the analysis of a proposed sewage system to the Department of Community and Cultural Affairs and ultimately the Department of Fisheries, Aquaculture and Environment.  The Respondent relied on the direction given by these departments, no permit was granted by either department and, as required under section 4.8, the Appellant's application was denied.

The Commission notes that no evidence was offered to support a finding that Mr. Wakelin, and in turn Mr. Carragher, were in error in rendering their opinion that a holding tank could not be allowed for the Appellant's application.  While the Department of Community and Cultural Affairs is not a party to this appeal, and the Commission has no jurisdiction to hear appeals of decisions under the Environmental Protection Act R.S.P.E.I. 1988, Cap. E-9, neither Mr. Wakelin nor Mr. Carragher were called as witnesses to testify as to the basis of their decision not to approve the Appellant's application for a holding tank, an integral part of his proposal for a development permit.

The Commission, in considering the Respondent's argument that the proposed holding tank does not meet the requirements of section 7.7, is not satisfied that it has enough evidence on this matter to decide whether or not a holding tank constitutes an on-site sewage treatment system.  This does not, however, impact the Commission's decision to deny the appeal, as significant other grounds are present to do so.

The Commission also notes that substantial argument was presented by both parties on the issue of whether the property in question is an existing, non-conforming or “grandfathered” lot and, as such, not subject to the minimum size and area requirements of the Bylaw.  The Commission agrees with the position taken by the Respondent that under section 4.10 of the Bylaw, the Appellant's property is not vacant and, therefore, does not qualify for special consideration with respect to the minimum width and area requirements in the Bylaw.  As both the Respondent and Appellant confirmed, the Appellant received permission to build and subsequently built a cottage on the property in 1995.  The property is, therefore, clearly no longer a vacant lot.

Accordingly, as the Appellant's application for a development permit did not meet the requirements of the Respondent's Bylaw, the appeal is denied.

4.  Disposition

An Order denying the appeal will be issued.

Order

WHEREAS S. Montgomery Drummond has appealed a July 24, 2000 decision by the Resort Municipality to deny the issuance of a development permit to build four rental cottages on provincial property 232892 located in the Resort Municipality;

AND WHEREAS/UPON  the Commission heard the appeal at public hearings conducted in Charlottetown on October 23, 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 9th day of November, 2000.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair

Maurice Rodgerson, Commissioner 

Norman Gallant, 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.