Docket: LA00116
Order LA00-15

IN THE MATTER of an appeal by Stuart Mason, et al. against a decision of the Minister of Community and Cultural Affairs, dated August 7, 2000.

BEFORE THE COMMISSION

on Wednesday, the 29th day of November, 2000.

Wayne D. Cheverie, Q.C., 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 

Stuart Mason
Hinman Barrett

2.    For the Respondent 

Donald Walters

3.    For the Developer

Counsel:
Spencer Campbell

Witnesses:
Fay MacKinnon
Ernie Morello

Reasons for Order

1.  Introduction

This is an appeal under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8 (the Act), by Stuart Mason, Dr. Vianne Timmons, Hinman Barrett, Nancy Barrett and Blair MacCallum (hereinafter referred to as the Appellants). By Notice of Appeal (Exhibit A1) dated August 23, 2000, the Appellants are appealing the decision of the Minister of Community and Cultural Affairs (the Respondent), dated August 7, 2000, to grant preliminary approval to Kel-Mac Inc. (the Developer) with respect to an application to revise portions of the subdivision, parcels #398040 and #398057, located at the community of Mermaid. 

Referring to the plan of subdivision titled “Subdivision Case #18941A Site Plan Preliminary Approval August 7, 2000” (Exhibit R43.1), the focus of this appeal is the proposed creation of lots 53, 53A, 54, 55 and 56 (the proposed lots) along Birkallum Drive out of part of what was labeled “Open Area 11.20 Acres” in the previous plan of subdivision titled “Subdivision Case #11622I Approval in Principle June 6, 1990” (Exhibit R43.2). 

After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the appeal on November 8, 2000. 

2.  Discussion 

While the Appellants are in favor of many of the changes to the subdivision which have received preliminary approval from the Respondent, they are opposed to the addition of the proposed lots. The Appellants submit the following points in argument: 

  • The addition of these lots will result in the elimination of the green space along Birkallum Drive, directly across the street from their homes.  This open green space was a major factor which influenced the Appellants to purchase their lots.

  • As a result of the development of the proposed lots, the Appellants will suffer a loss of privacy and also a loss of view; for example a good view of sunsets and the night sky. 

  • The earlier approved subdivision plans were a written commitment that an open green space would be maintained opposite their homes.  By granting preliminary approval to the addition of the proposed lots, the Respondent is not protecting the interests of the residents on the other side of Birkallum Drive.

  • The proposed lots will create additional driveways that will result in increased vehicle traffic backing out onto Birkallum Drive, thus reducing safety for the neighborhood's children.

The Appellants request that the Commission allow the appeal, order the retention, in its present location, of the open green space on Birkallum Drive, and deny preliminary approval of the proposed lots.  

The Respondent expresses the position that the provisions of the Act and the Planning Act Regulations (the Regulations) were carefully followed prior to the granting of preliminary approval for revisions to the Developer's subdivision.   The Respondent submits the following points in argument: 

  • The proposal for revisions to the Developer's subdivision is a redesign or a reconfiguration of the subdivision and not an extension of the subdivision, as no additional acreage is being approved.  Accordingly, section 30 of the Regulations does not apply in this case. 

  • The Respondent considers the proposed redesign of the subdivision to be an improvement, in that there is more open space and greater accessibility to the open space. 

  • The Respondent is satisfied that the proposed redesign of the subdivision will not have any “detrimental impact”, as that term is defined in section 3 of the Regulations.  The Respondent sought input from the Department of Transportation and Public Works concerning the proposed revision (Exhibit R19).  With respect to concerns regarding public safety, the Department of Transportation and Public Works notes that the proposed redesign of the subdivision incorporate streets with acceptable curves, intersections and cul-de-sacs, as noted in a July 7, 2000 letter from Jake Bartlett to John Pickard (Exhibit R22).  The Respondent will not grant final approval to the proposed redesign of the subdivision until all conditions have been met.  The Respondent does not see locating residential lots next to, or across from, other residential lots to be a safety issue in a residential subdivision.

The Respondent requests that the Commission deny the appeal, as the proposal for revisions to the Developer's subdivision meet all the requirements under the Act and the Regulations for preliminary approval. 

The Developer articulates the position that the proposed redesign of the Developer's subdivision represents continuing advances in land use planning.  The Developer submits the following points in argument:

  • Neither the Act nor the Regulations prevent revisions to a subdivision.  The evidence in fact suggests that this subdivision was revised several times.  The proposed plan is the best it can be under the circumstances, given that this plan is for revisions to an existing subdivision, as opposed to a design of a new subdivision.

  • Neither the Act  nor the Regulations refer to protection of a right to privacy or to a right to a view.  In fact, the potential effects on viewscapes and real property value are specifically excluded in the definition of “detrimental impact” under section 3 of the Regulations. The Developer seriously doubts that there will be any measurable loss of privacy if the proposed revisions to the subdivision are approved.  

  •  There is no evidence before the Commission that the development of five single-family residential lots across the street from the Appellants' properties will affect the safety of children in the neighborhood.

  • The proposed revisions to the subdivision reduce the number of long roads in favor of short streets and cul-de-sacs, in order to encourage a sense of neighborhood.  These features also result in more intersections, which tend to reduce the speed of traffic and thereby enhance public safety.  

3.   Findings

 After giving careful and full consideration to the evidence submitted in this case, the Commission has decided to deny the appeal.  The reasons for the Commission's decision are as follows:

The Commission, as an appellate body, has the same decision making power as the tribunal at first instance, in this case the Respondent. The Commission is a creature of statute; it does not have absolute powers and is bound by the law, in this case the Act and the Regulations. 

On appeal, the Commission has the power to hear the evidence and arguments as presented by the parties and decide whether to allow the appeal or dismiss it based on the evidence and arguments presented and within the applicable regulations.

 Subsection 28(1) of the Act sets out the nature of an appeal to the Commission under the Act: 

28(1)  Subject to subsections (2), (3) and (4), any person who is dissatisfied by a decision of a council or the Minister in respect of the administration of regulations or bylaws made pursuant to the powers conferred by this Act may, within twenty-one days of the decision appeal to the Commission.

In this case, the Commission is bound by the Regulations, which set out the necessary requirements for subdivision and development. 

The following sections of the Regulations are particularly germane to this case: 

25(2)No person shall be permitted to subdivide land if the proposed subdivision

(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, the Lands Protection Act, the Provincial Building Code Act, or the Roads Act;
(b) would precipitate premature development or unnecessary public expenditure, or would place pressure on the municipality or the province to provide services; or
(c) would have a detrimental impact. (emphasis added)

 Detrimental impact is defined under section 3 of the Act:

 “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;  (emphasis added)

Although not specifically mentioned in the Notice of Appeal (Exhibit A1), it became apparent from the evidence of the Appellants at the hearing that they were claiming that the proposed revision of the subdivision would have a “detrimental impact” on them. The Appellants argue that the creation of the proposed lots will reduce their privacy and interfere with their view.  However, the Regulations do not specifically deal with the issue of privacy.  The evidence before the Commission suggests that the Appellants will retain a reasonable standard of privacy, consistent with that expected in a residential subdivision.  The Commission notes that “viewscapes” are specifically exempted from the definition of detrimental impact contained in the Regulations.  Accordingly, the Commission finds that issues of privacy and enjoyment of view are not matters considered under the Regulations. 

The Appellants raise the issue of public safety, which is a factor considered under the definition of detrimental impact found in the Regulations.  However, no evidence was provided at the hearing that the development of five single-unit residential lots across the road from the Appellants' properties would endanger public safety.  In addition, the Department of Transportation and Public Works (Exhibit R22) have reviewed the proposal prior to the Respondent granting preliminary approval to the subdivision revisions. The Commission finds that there is insufficient evidence to deny preliminary approval to this proposal, based on detrimental impact in matters related to public safety. 

The Commission finds that there are no provisions in the Regulations which would prevent a revision of a subdivision.  

Section 30 of the Regulations state: 

30 No extension to an existing subdivision shall be approved by the Minister until two-thirds of the existing subdivision lots have been sold by the subdivider.   (emphasis added)

The Commission finds that the proposal which has been granted preliminary approval in this case is a proposed revision of a subdivision, rather than an extension of the subdivision.  The evidence before the Commission indicates that the overall size and shape of the subdivision as a whole will remain the same.  In essence, the proposal reflects internal changes to the layout of streets, residential building lots and open spaces within the subdivision.  In fact, it appears that the Developer went to great lengths to enhance the subdivision lots for sale, while at the same time preserving necessary “open” or “green” space. 

While the Appellants apparently believed that the open space opposite their properties would be preserved indefinitely from future development, the Act does not guarantee this.  Even if a contract or a covenant existed to support the Appellant's position, the Commission would lack the jurisdiction to enforce such agreements.  

Ultimately, the Commission's role in this appeal is to determine whether the Respondent made its decision to grant preliminary approval to the subdivision in accordance with the provisions of the Act and Regulations.  The evidence before the Commission suggests that the Respondent very carefully and thoroughly reviewed the proposal for subdivision revision in accordance with the Act and Regulations before making the decision to grant preliminary approval.  Further, it appears to the Commission that the Respondent went out of their way to deal with the concerns of all those affected and ultimately came to the correct decision. There is no evidence before the Commission that the Respondent made an error in the administration of the Regulations.  

While the Appellants may legitimately feel that they have suffered loss or harm as a result of the preliminary approval of these subdivision revisions, they have not established that the proposal would have a detrimental impact, as that term is defined in the Regulations.  Accordingly, as the Respondent has fully and carefully applied the Regulations, the Respondent's decision in this matter to grant preliminary approval to the proposed revisions to the Developer's subdivision is affirmed and the appeal must be denied. 

4.   Disposition 

An Order denying the appeal will therefore be issued.

Order

WHEREAS Stuart Mason, Dr. Vianne Timmons, Hinman Barrett and Blair MacCallum, the Appellants, have appealed a decision made by the Minister of Community and Cultural Affairs dated August 7, 2000;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on November 8, 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 denied.

DATED at Charlottetown, Prince Edward Island, this 29th day of November, 2000.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C. 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.