Docket LA98018
Order LA99-01

IN THE MATTER of an appeal by Sterling R. MacKay against a decision by the Minister of Community Services, dated November 9, 1998.

BEFORE THE COMMISSION

on Thursday, the 28th day of January, 1999.

Ginger Breedon, Vice-Chair
 Elizabeth MacDonald, Commissioner
 Mary Burge, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

1. Introduction
2. Discussion
3. Findings
4. Disposition

Order

Appearances & Witnesses

1. For The Appellant, Sterling R. MacKay:

Represented By:
Reg MacLean

Witnesses:
Sterling R. MacKay
Robert (Bobby) MacKay

2. For the Minister of Community Services:

Witnesses:
Don Walters
Niall MacKay
Rosemary Curley

Reasons for Order

1. Introduction

Section 12 of the Planning Act Regulations (the Regulations) requires that a person must receive a building permit from the Minister of Community Services (the Minister) before, among other things, changing the location of any building or structure or moving or relocating any building or structure.

On July 31, 1998, Sterling R. MacKay (the Appellant) applied for development approval (Exhibit D2) to relocate a cottage from Brighton to Lakeside (parcel number 177337).

By letter dated November 9, 1998, the Appellant was advised by the Department of Community Services (the Department) that pursuant to Sections 28 and 33 of the Planning Act Coastal Area Regulations, the Appellant's application for a permit was denied (Exhibit D10).

On November 25, 1998, the Appellant appealed the decision of the Minister not to issue a building permit for the relocation of the cottage (Exhibit A1). That appeal was filed with the Island Regulatory and Appeals Commission (the Commission) pursuant to Section 28 of the Planning Act R.S.P.E.I. 1988 Cap P-8 (the Act) and, after due public notice, the Commission heard the appeal on January 19, 1999 in Charlottetown.

2. Discussion

The Appellant

The Appellant's position may be summarized as follows:

The Appellant states that he has owned parcel number 177337 for 30 to 40 years. The Appellant further indicates that he originally owned a larger parcel of land and, about 20 years ago, subdivided some of this land, sold 4 lots and retained the largest parcel (approximately 8-9 acres) in the center for his future retirement.

The Appellant describes the parcel when he originally acquired it as farmland from which he harvested hay for a number of years. He further points out that over the years the bank along the shore increased substantially in height as sand built up and moved inland.

The Appellant states that over the years he has on his own initiative allowed the public to access the beach through his land and also provided parking for members of the public to enjoy the beach and surrounding area.

The Appellant also indicates that it is his intention to locate his cottage on the most southerly portion of the parcel and leave the northerly portion between the cottage and the beach to be available to the public. The Appellant contends that this is a valuable piece of land and he feels that locating a cottage there would pose no threat to the surrounding area. He also points out that there are other cottages already located beside the site he wishes to use for his cottage. He wonders how they were allowed to locate there when he is not.

The Appellant's son, Bobby MacKay, indicates that there are some groups of trees which separate the proposed cottage from the beach. Bobby MacKay further noted that the presence of trees confirms the parcel is not wet and, when he dug the test pit to check soil conditions for a possible septic system, he found 3.5 feet of dry soil before encountering some moisture below that level.

The Appellant states that the land was not wet this past summer. Bobby MacKay, in turn, states that there is a wet area at the north end of the property, but it has much less water than in the past and that he had driven to the location of the test pit and had not crossed any wet areas. As well, he indicates that there are dunes on the northern portion, but not on the southern portion where the proposed cottage would be.

The Appellant also states that he feels that a group of residents opposing his cottage relocation may be the reason why his application was denied.

The Appellant, Bobby MacKay and Mr. MacLean all express concern that if the Appellant cannot locate his cottage on this parcel or use the parcel for any other development purpose, the land has no value to the Appellant. They further state that if the Provincial Government or some of the residents in the area do not want any development to take place on this parcel, consideration should be given to acquiring it for the overall benefit of the general public.

The Appellant requests the Commission to allow the Appeal and, thereby, permit him to relocate his cottage to his property as proposed.

The Department

The Department's position may be summarized as follows:

Don Walters, on behalf of the Minister of Community Services, states that they received an application from Sterling R. MacKay to relocate a cottage onto parcel number 177337 on July 31, 1998 (Exhibit D2).

Mr. Walters also indicates that a petition was received from a number of area residents expressing concerns that the property should not be developed because they wanted to see the dune system protected and wanted public access for parking. Mr. Walters further noted that the residents' group would like the Provincial Government to acquire the property and keep it for the benefit of the general public.

During the hearing, Niall MacKay, a Property Development Officer with the Department of Community Services, Inspection Services Division, states that he conducted an inspection of the "test pit" on the property on August 12, 1998 with Bobby MacKay. From that inspection he determined that the soil was wet below a depth of approximately 3.5 feet. Niall MacKay further indicates that Bobby MacKay proposed that 1 to 2 feet of fill would be placed on this low area of the site to provide adequate soil conditions for a septic system. Niall MacKay confirmed, however, that the question of whether this site could properly accommodate a septic system did not enter into the Department's decision on the building permit application.

Niall MacKay also states that he determined the application for the building permit should be sent to the Department of Technology and Environment for their analysis because the parcel involved is a known sand dune area.

Rosemary Curley, a Wildlife Biologist with the Department of Technology and Environment, Fish and Wildlife Division, gave evidence at the hearing that she inspected the involved parcel and concluded the proposed lot contains primary and secondary sand dunes, as well as wetlands. She also concludes there is nowhere on the site that would be suitable for the location of the cottage within the requirements of the Planning Act Coastal Area Regulations.

Ms. Curley indicated during the hearing that she has a Masters of Science Degree and has spent many years working with the Provincial Government in the areas of wildlife and environment.

The Department therefore concludes that because the proposed lot contains primary and secondary sand dunes and wetlands, the application must be denied under Section 28 and Section 33 of the Planning Act Coastal Area Regulations.

The Department requests that the appeal 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 Coastal Area Regulations, which set out the necessary requirements for development in coastal areas.

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

Section 28 states:

s.28 No building or structure shall be constructed, erected, or placed
 (a) on any primary or secondary sand dune, or a baymouth barrier sand dune; or
 (b) within 100 feet of a migrating primary or migrating secondary sand dune.

Section 33 states:

s.33 No building or structure having a proposed residential, institutional, commercial, or recreational use shall be constructed with (sic) 75 feet of a 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.

The Commission has heard the evidence on behalf of the Department of Community Services and from the representative of the Department of Technology and Environment, that the proposed lot is located in an area containing primary and secondary sand dunes and that the proposed cottage would necessitate the infilling of a portion of a wetland area.

In support of the Department's position, on the Pre-Development Inspection Report (Exhibit D5), Niall MacKay indicated that the application should be sent to the Department of Technology and Environment for evaluation as this area is a well-known sand dune area. The application was forwarded to Alfie Wakelin, the Environmental Assessment Technician with the Department of Technology and Environment (Exhibit D6). Mr. Wakelin was subsequently advised by Rosemary Curley on November 4, 1998 (Exhibit D8), that the property consists of primary dunes, secondary dunes and wetlands. Ms. Curley confirmed during the hearing that she had visited and inspected the subject property prior to advising Mr. Wakelin.

Mr. Wakelin subsequently notified Don Walters on November 5, 1998 (Exhibit D9) that the location for the proposed cottage is unsuitable for development, as it would necessitate the infilling of a wetland. He also noted that there is no suitable area on the property for development as the property consists of primary dunes, secondary dunes and wetlands.

While the Appellant, Bobby MacKay and Mr. MacLean provided argument that it should be possible to place the cottage on the property, they did not provide the Commission with substantive evidence to contradict the Department's assessment of the property.

Based on the evidence that the lot contains primary and secondary sand dunes and that the proposed location of the cottage would necessitate some infilling of a portion of a wetland area, the Commission finds that the property cannot satisfy the requirements of Sections 28 and 33 of the Planning Act Coastal Area Regulations and, therefore, the Minister cannot issue a building permit pursuant to Section 12 of the Regulations.

As a result, the Department's decision is affirmed and the Appeal is denied.

In reaching this conclusion, the Commission believes it must, however, commend the Appellant for his generosity over the years in allowing the general public to have access to his property. This has been a selfless act and has given benefit and enjoyment to many Islanders and visitors over the years.

During the hearing, the Department stated that a number of preliminary discussions have been taking place among government staff to determine whether the Provincial Government might be interested in acquiring the Appellant's property so as to maintain it for public use. Given the concerns expressed by the Appellant about not being able to use his property and the interest expressed by the public in having this unique land held by government to ensure its protection and availability for the public for years to come, the Commission hopes these discussions continue for the possible benefit of all parties.

Before closing, the Commission also wants to address the point made by the Appellant regarding the fact that there are already cottages located in the area where he wishes to locate his cottage and why, therefore, is he not allowed to do the same thing. Provincial acts and regulations are subject to change over the years. In this particular case, it is the Commission's understanding that the existing cottages met the legislative requirements at the time they were built. Subsequently, in 1993, new regulations were introduced which established a new set of requirements for development in coastal areas. These new requirements include the provisions in Sections 28 and 33 of the Coastal Area Regulations regarding sand dunes and wetlands, which must now be met by anyone looking to locate a cottage in a coastal area. This is the situation in this case.

4. Disposition

For the reasons given, the appeal is denied.

WHEREAS Sterling R. MacKay, the Appellant has appealed a decision by the Minister of Community Services to deny a building permit to relocate a cottage on provincial parcel number 177337 located in Lakeside, Prince Edward Island;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on January 19, 1999 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 28th day of January, 1999.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Elizabeth MacDonald, 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.