Docket LA99004
Order LA99-03

IN THE MATTER of an appeal by Don Donovan against a decision by the Minister of Community Services and Attorney General, dated February 10, 1999.

BEFORE THE COMMISSION

on Tuesday, the 11th day of May, 1999.

Wayne D. Cheverie, Q.C., Chairman
Weston Rose, Commissioner
Mary Burge, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

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

Order

Appearances & Witnesses

1. For The Appellant

Represented by:
Don Donovan

2. For The Respondent – The Minister of Community Services and Attorney General

Represented by:
Don Walters
Garth Carragher

3. For the Developer

Represented by:
Edna Wall
John Wall

Reasons for Order

1. Introduction

Don Donovan, the Appellant, has appealed a decision by the Minister of Community Services and Attorney General (the Respondent) to issue a building permit (permit number C-015-99) to Edna Wall (the Developer), dated February 10, 1999. The permit was issued to relocate a mobile home on property number 398081 located in Mt. Herbert.

This appeal has been filed with the Island Regulatory and Appeals Commission (the Commission) pursuant to Section 28 of the Planning Act (the Act) R.S.P.E.I. 1988, Cap. P-8, and the Commission heard this appeal on April 23, 1999.

2. Discussion

A. The Appellant

During the hearing the Appellant stated that the trailer, which has been moved on to lot number eight (8) by Edna Wall, is small and should not be considered a family unit. Due to the size of the unit and the quality of the unit, the Appellant believes that the unit will reduce the value of his home.

The Appellant submits that he was not consulted by the Respondent prior to the building permit being granted and furthermore he believes that more than just two signatures (as evidenced in Exhibit D3) should have been required by the Respondent prior to the issuance of the building permit. The Appellant contends that the majority of property owners were not consulted and that the Respondent should have considered the position of these individuals prior to issuing the building permit.

The Appellant also contends that when he purchased his lot approximately ten (10) years ago from Ivan and Lillian Wall he was assured by them that no trailers would be allowed on the lots adjacent to his property. For all of these reasons, the Appellant requests that the trailer on lot number eight (8) be removed.

B. The Respondent

The Respondent states that in 1996 a building permit was issued to Edna Wall to relocate a mobile home unit on the subject property (Exhibit D4). This mobile home was subsequently destroyed by fire. The Respondent contends that this building permit established the use of the lot for a mobile home. The respondent submits that when the application was made for a building permit (Exhibit D5) they concluded that because a building permit had previously been granted for a mobile home on this lot and based on the fact that the previous mobile home was destroyed by fire, a new permit was issued automatically. The permit approved on February 10, 1999 (Exhibit D6) was for the replacement of the previous mobile home.

With respect to canvassing property owners, the Respondent submits that at the time the original permit was granted in 1996 (Exhibit D4) the majority of property owners in the subdivision, which consists of Lots 8, 9 and 10, had no objection to change the land use designation from single family to mobile home use. The Respondent contends that there was no requirement to canvass the neighbours for the new permit.

The Respondent believes that the mobile home in question is in reasonable condition and satisfies the requirements of the Planning Act Regulations and as a result there was no basis to refuse the issuance of the Building Permit. For the foregoing reasons, the Respondent therefore requests that this appeal be dismissed.

C. The Developer

The Developer, although present, made no submissions during the hearing.

3. Decision

A. Compliance With The Planning Act Regulations

Upon reviewing all of the evidence in this case, and after applying the applicable law, the Commission has concluded that the appeal must be allowed. In doing so the Commission is aware of the fact that it is a creature of statute, and can only carry out its functions according to the powers granted to it by the legislature. Furthermore, the Commission must apply the law as it finds that it exists in relation to the factual situation presented to it.

In this case, the Commission is governed by the Planning Act Regulations which provide for the prerequisites for the issuance of permits for the relocation of mobile homes onto property designated for single family use only. In particular, Sections 51 and 53 of the Regulations apply to the present case.

Section 51 of the Regulations states:

51(1) No person shall, except in the case of a mobile home court, place a mobile home upon a lot or parcel without a permit therefor issued by the Minister.

According to the evidence, lot number eight (8), the subject lot is not within a mobile home court and as a result, before a mobile home could be placed on the subject lot the Minister must first grant a permit.

On February 9, 1999 Edna Wall applied for development approval to locate a mobile home on lot number eight (8) to replace an "old trailer which was burned" (Exhibit D5). The evidence supports that the Minister granted such permit on February 10, 1999 (Exhibit D6). However, before issuing such a permit, Section 53 of the Regulations must be satisfied.

Section 53 of the Regulations provides:

53 The Minister may issue a permit authorizing the placement of a mobile home on a lot in a subdivision approved
 (a) for single family dwelling use only; or
(b) for summer cottage use only,
 if he is satisfied that the majority of the owners of property within the subdivision do not object thereto and that the placement will not have a detrimental effect on the subdivision. (EC601/77)

In essence, Section 53 creates an exception. Generally speaking, a mobile home is not appropriate to be placed on a lot in a subdivision approved for single family dwelling use only or in a subdivision approved for summer cottage use only, but, if he is satisfied that the majority of the owners of the property within the subdivision do not object thereto, and if he is satisfied that the placement of that mobile home will not have a detrimental effect on the subdivision, then the Minister may issue a permit authorizing the placement of a mobile home on such a lot.

It is the Respondents submission that since a permit was in fact granted in 1996 to relocate a mobile home onto the subject property, and due to the fact that the provisions of Section 53 were complied with at that time in the opinion of the Respondent, then there would be no further need to again canvass the neighbours or consider detrimental effect. Put simply, the Respondents submit that this was merely the replacement of a mobile home.

After reviewing the evidence, and the applicable law, particularly Section 53 of the Regulations, the Commission is of the view that a permit was required in this case before a mobile home could be moved onto the subject lot. Further, as stated above, prior to issuing that permit, the Respondent had to satisfy himself as to the prerequisites set out in Section 53 of the Regulations. It is clear from the evidence that the Respondent did not canvass the owners of the property within the subdivision, but rather relied on information which was gathered with respect to a previous permit issued in 1996. There is nothing in the Regulations to suggest that the requirements of Section 53 may be waived. Since a permit was required, the Respondent had to comply with the provisions of the Regulations, especially in relation to the placement of a mobile home on a lot where it otherwise would have not been allowed. The Respondent did not comply with these Regulations.

In making this finding, the Commission is aware of the fact that a mobile home had been placed on the subject lot previously and had apparently been destroyed by fire. However, if it is intended to allow permit holders to retain their permit even in an unfortunate situation such as the present, then there should be some provision for that in the Regulations. The evidence clearly discloses that the Respondent issued a new permit for the property in question after receiving an application therefor, but in doing so choose to rely in part on information gathered for a previous permit.

If the intention of the Respondent is to waive the regulatory requirements in cases similar to this, then there must be a provision in the Regulations to allow this process. That is, in cases where the Respondent decides not to canvass the property owners or consider detrimental effect because he chooses to rely on information obtained from another case – the Regulations should allow for this discretion. Section 53 does not.

As a permit was required pursuant to Section 51 and as the provisions of Section 53 of the Regulations were not complied with, the Commission hereby quashes permit C-015-99 and the matter is directed back to the Respondent to ensure compliance with the Regulations.

B. Satisfying Section 53 of the Regulations

In order to satisfy the provisions of Section 53 of the Regulations, "owners of property within the subdivision" must be canvassed in order to assess whether the majority have no objections. The subject lot (lot 8) was part of a plan of subdivision for lots 8, 9 and 10 approved on May 31, 1988 for single family dwelling use only (Exhibit D2).

It would appear that in 1996 when the Respondent considered whether the majority of owners do not object, the Respondent interpreted "subdivision" to include lots 8, 9 and 10 only. During the hearing the Respondent stated that the procedure was to check the majority of lot owners for those lots approved on the same plan. In this case there were three lots approved on this plan. The Appellant on the other hand believes that "other" residents who live along the MacEachern road should have been consulted.

In considering this matter, the Commission has reviewed a previous decision rendered by it which is relevant to the present case.1 In Order LA94-13 the Commission considered this matter and had the following to say:

The Commission believes that the purpose for determining the opinion of the majority is to simply seek the opinion of those owners who have acquired a direct interest in property within the subdivision. The boundaries are not limitless but encompass that part of a parcel that has been approved for subdivision and is to be used for the development of single family dwellings. In the opinion of the Commission, the Department's interpretation that the opinion of those property owners in the 1st phase of a subdivision of a parcel would not be solicited if a mobile home were to be placed on a lot in the 2nd phase of the subdivision of the same parcel fails to consider that the subdivision of both phases is from the same parcel. It fails to consider the interests of all owners of property who bought lots divided from the parcel for single family dwelling purposes. Consequently, if one extends the Department's policy it is conceivable that after the 1st phase has been approved and lots have been sold, then the development of the remainder of the parcel could systematically be approved for placement of mobile homes by the division of one lot at a time. The only opinion the Minister would seek is the owner of the new lot. The Commission does not believe that the intent of the regulation is to be that limited. The limits are the boundaries of the whole parcel being subdivided and that part of the parcel approved for single family dwelling use.

In the case now before the Commission, the question to be answered is what parcel has been subdivided.

"Subdivision" is defined in the Regulations as follows:

A division of a parcel of land by means of a plan of subdivision, plan of survey, agreement, deed or any instrument, including a caveat, transferring or creating an estate or interest in part of the parcel;

"Parcel" is also defined in the Regulations:

Means a lot, block, or other division of land which is recognized as by the Minister as a separate unit of land for the purpose of these regulations.

According to Exhibit D8, it would appear that the parent parcel is property number 398081 and approximately 23 lots have been subdivided off the parent parcel.

The evidence is unclear as to whether all the lots subdivided from the parent parcel have been approved for single family dwelling use only. However, according to the Appellant the lots along the MacEachern Road consist of single family dwellings including mobile homes, mini homes, or houses.

Consistent with its findings in Order LA94-13, the Commission believes that all lots subdivided from property number 398081 and approved for single family dwelling use are part of the "subdivision" and should have been canvassed by the Respondent in order to determine whether the majority of property owners within the subdivision do not object.

Further to this matter, the Appellant presented as evidence a letter (Exhibit A2) from the owner of lot nine (9) who, according to Exhibit D3 previously had no objection to having lot eight (8) changed from single family dwelling to mobile home use in 1996. Although the owner of lot number 9 was not present during the hearing, it would appear according to this letter the owner of lot number 9 may now object to a mobile home being placed on lot 8.

If this letter is considered a revocation of prior consent, and the owner of lot 9 is now against the proposal, it would also appear that a majority cannot be reached to satisfy the provisions of section 53 of the Regulations even if the Commission were to adopt the Respondent's approach to include only lots 8, 9 and 10. In addition, there is no evidence before the Commission to assist in determining whether the owner of lot number ten (10) has altered his previous position.

C. Detrimental Effect

The position of the Appellant at the hearing was that the placement of a mobile home on lot number eight (8) reduce his property value. However, the Appellant offered no evidence to support this contention other than his own opinion.

The Respondent submits that real property value is not included in their assessment of whether or not a particular use may have a detrimental impact on surrounding land uses. In stating this position, the Respondent relies on the definition of detrimental impact as defined by the Regulations which does not include potential effects of new buildings or development with regard to real property value.

Even though the Appellant has produced no evidence to support his contention that his property value might be affected by the placement of a mobile home on the lot in question, his position raises an interesting issue as to whether the definition of detrimental impact is synonymous with the phrase detrimental effect as contained in Section 53 of the Regulations. The Commission notes that the definition of detrimental impact was inserted in the Regulations in an apparent attempt to clarify how this concept may be applied during consideration of proposals for building permits and subdivisions under subsections 15(1) and 25(2) of the regulations.2

However, the Commission cautions the Respondent on its apparent use of the phrases "detrimental impact" and "detrimental effect", interchangeably. Since the Lieutenant Governor in Council specifically directed its attention to the phrase "detrimental impact" as used in subsections 15(1) and 15(2) of the Regulations, one might also conclude that by not addressing the phrase "detrimental effect" as it appears in Section 53, that the Lieutenant Governor in Council intended that it convey a meaning separate and apart from "detrimental impact".

Of course this whole discussion goes to the issue raised by the Appellant that the subject mobile home will have a negative effect on the value of his property. Since there is no evidence to support this contention, other than the personal opinion of the Appellant, then the appeal cannot succeed on this ground. Therefore it follows that the Commission does not have to determine whether "detrimental impact" and "detrimental effect" are synonymous.

D. Commission Order LA94-13

At the conclusion of the hearing, it was clear to the Commission that the Respondent was aware of a previous Commission decision relative to the issue of Section 53 of the Regulations, that being Commission Order LA94-13. That case dealt with a fact situation similar to the present case, but notwithstanding that, the Respondent did not apply the findings in that case to the present one. In fact, those findings were apparently not applied in 1996 when Edna Wall applied for and was granted a building permit to move a mobile home onto the lot in question. The Commission does not know whether the Respondent chose to ignore this previous decision or whether it was merely an oversight. However, the lack of attention paid to it, is of concern to the Commission.

E. Conclusion

In conclusion, the Commission empathizes with Edna Wall and the position in which she now finds herself. It is unfortunate that the Regulations do not in some manner address her particular fact situation. However the Commission hastens to point out that this decision does not stand for the proposition that a mobile home should not be placed on lot number eight (8) or that Ms. Wall must immediately move her mobile home. Rather, the Commission believes that the provisions of Section 53 of the Regulations must be satisfied before a valid permit may be granted by the Respondent. It is still open to the Respondent to seek the necessary requirements to comply with the regulations.

Permit C-015-99 is hereby quashed and the Respondent is directed to satisfy the provisions of Section 53 of the Regulations.

4. Disposition

An Order allowing the appeal will therefore issue.

Order

WHEREAS Don Donovan has appealed a decision by the Minister of Community Services and Attorney General to issue a permit to Edna Wall to relocate a mobile home on provincial property number 398081, located at Mt. Herbert;

AND WHEREAS the Commission heard the appeal at a public hearing conducted in Charlottetown on April 23, 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 allowed and permit number C-015-99 is hereby quashed.

DATED at Charlottetown, Prince Edward Island, this 11th day of May, 1999.

BY THE COMMISSION:

Wayne D. Cheverie, Q.C., Chairman
Weston Rose, 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.

1    Commission Order LA94-14k, James F. Doyle, et. al. v. Department of Provncial Affairs, dated Septebmer 23, 1994.
 2    Executive Council Order EC1999-11, January 5, 1999.