Order LA99-04 - LA99005 - Planning Appeal - Lloyd Ellsworth v. Community Services & Attorney General (Jun. 1/99)

Docket LA99005
Order LA99-04

IN THE MATTER of an appeal by Lloyd Ellsworth against a decision made by the Minister of Community Services and Attorney General dated March 26, 1999.

BEFORE THE COMMISSION

on Tuesday, the 1st day of June, 1999.

Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Arthur Hudson, Commissioner

Order

Contents

Appearances & Witnesses

Reasons for Order

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

Order

Appearances & Witnesses

1. For The Appellant:

Lloyd Ellsworth

2. For the Respondent, the Minister of Community Services and Attorney General

Donald Walters
Gerald McMillan

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, by Lloyd Ellsworth (the Appellant).

According to the Notice of Appeal dated March 31, 1999 and filed with the Island Regulatory and Appeals Commission (the Commission) on April 8, 1999 (Exhibit A1), the Appellant has appealed a decision by the Minister of Community Services and Attorney General (the Respondent) to deny an application to relocate a mobile home onto property number 786228 located in Roseville (Exhibit A.1.1). The Appellant is seeking to have this decision overturned.

After due public notice and suitable scheduling for the involved parties, the Commission proceeded to hear the appeal on May 25, 1999.

2. Background

The Appellant made application on February 3, 1999 (Exhibit D1) seeking a building permit to relocate a mobile home onto property number 786228 located in Roseville.

An evaluation of the property was carried out by the Respondent (Exhibit D9) with the assistance of the Department of Technology and Environment (Exhibits D7 and D8). This evaluation concluded that the property has a perched water table during the wetter seasons of the year, a very shallow depth of permeable soil and an underlying depth of very fine, dense material which has little or no ability to absorb water.

On March 26, 1999, the Respondent advised Lloyd Ellsworth that pursuant to Section 15 and 19 of the Planning Act Regulations (Exhibit A1.1), an approval of his application to relocate a mobile home onto the property in question could not be granted.

On March 31, 1999, Lloyd Ellsworth appealed this decision to the Commission.

3. Discussion
3.1 The Appellant

The Appellant's position may be summarized as follows.

The Appellant owns approximately 10 acres of land on which he wishes to relocate a mobile home. He submits that the land is a bit wet, but he's been driving his truck on the property since February and hasn't noticed any water and hasn't had any problem in using his truck.

In response to the Respondent's conclusion that the property is not suitable for an on-site sewage disposal system, the Appellant argues that his neighbours have the same type of property, and they simply added fill to their properties, and have not had any problems to date with drainage or their septic systems. The Appellant provided letters from two neighbours in close proximity to the subject property who had improved their lots with loads of top soil and shale, and indicate that they have not had any problem with drainage on their lots (Exhibits A1.2 and A1.3). He argues that he is prepared to upgrade his lot by adding four feet of soil to the area where the mobile home and septic system are to be located.

The Appellant feels consideration should also be given to the fact that the subject property is covered with trees which indicates that there is not too much water on site. He further submits that he is in the process of clearing the site and that this will further improve the drainage.

The Appellant does not specifically dispute the findings of the Respondent and acknowledges that he would not have a septic system installed on the site in its present condition. He believes, however, that there will be no problem if he puts the proper amount of soil onto the site before installing the septic system. He cites the experience of the neighbouring homeowners and the advice of a contractor who suggests that 3-4 feet of fill and topsoil would be sufficient. In addition, the Appellant indicates that he would put a ditch around the lot to assist with drainage and water collection.

In conclusion, the Appellant argues that he is not satisfied with the Respondent's decision to deny him the opportunity to develop his lot in light of his plans for upgrading the site.

The Appellant requests that the decision to deny the permit be overturned.
3.2 The Respondent

The position of the Respondent may be summarized as follows.

On February 4, 1999, the Respondent carried out a pre-development inspection of the property by inspecting three backhoe test pits and the property as a whole. Two of the pits were near the road end of the property while the other was further into the property. The Respondent refers to a Pre-Development Inspection Report (Exhibit D9) which indicates that all test pits had a shallow depth of gray or grayish-brown topsoil of 10 inches or less. The Respondent submits, in a letter dated February 8, 1999 (Exhibit D7), that this would indicate that there is a perched water table in these areas during the wetter seasons of the year. Further, the Respondent submits that in all of the test pits, the soil beneath this layer is a very fine dense material which would have little or no ability to absorb water.

The Respondent indicates that comments were subsequently requested from the Department of Technology and Environment (Exhibit D7) on the results from the test pits. Mr. Delbert Reeves of that Department responded on March 26, 1999 by stating that he agrees with the Respondent's assessment and that the subject property is a Category III lot, as provided in Section 36(1) of the Planning Act Regulations. He further noted that since the reason for the Category III classification is the presence of at least a seasonal high water table, the lot would not be suitable for upgrading to a Category II level (Exhibit D8).

The Respondent also submits that through a review of maps showing soil types (Exhibit D10), it was found that the soils on the subject property are of three different types: Margate, Rocky Point and Duvar Soils. The Respondent further points out that the P.E.I. Soil Survey (Exhibit D13) describes these soils as very poorly drained, impervious, and with high seasonal water tables. In addition, the Respondent notes that the P.E.I. Soil Survey identified these soils as having severe to unsuitable limitations for septic systems.

The Respondent submits that based on the physical evaluation of the site and the assessment of the soil survey information, the site cannot properly support an on-site sewage disposal system. As a result, the requirements and preconditions to issuing a development permit cannot be met and, therefore, the Respondent has no alternative but to deny the Appellant's application for a permit to develop the site.

The Respondent requests that the appeal be dismissed.

4. Findings

After giving careful and full consideration to the evidence submitted in this case and the relevant requirements of the law, the Commission must deny the appeal.

The reasons for the Commission's decision are as follows.

In considering the issuance of a building permit, the Respondent is bound by Subsection 15(1) of the Planning Act Regulations which states:

15.(1) No building permit shall be issued if the proposed building structure, or its alteration, repair, location or use or change of use
(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 R.S.P.E.I 1988, Cap. F-11, the Lands Protection Act, the Fire Prevention Act, the Provincial Building Code Act R.S.P.E.I 1988, Cap. P-24, or the Roads Act;

(b) precipitate premature development or unnecessary public expenditure, or would place undue pressure on the municipality or the province to provide services;

(c) would have a detrimental impact; or

(d) would result in a fire hazard to the occupants or to neighboring buildings or structures. (Emphasis added)

Where the building permit application includes the required installation of an on-site sewage system, the Respondent is further bound by the provisions of Section 36 of the Planning Act Regulations which provides:

36.(1) Lots shall be categorized according to the following:
(a)Category I, where the lot has a depth of permeable natural soil of 2ft/.61 m. or more, and where the depth to bedrock and the depth to the maximum water table elevation is greater than 4 ft/1.22 m;

(b)Category II, where the lot has a depth of permeable natural soil of 1 ft./3 m. or more, but less than 2 ft./.61 m., and where the depth to bedrock and the depth to the maximum water table elevation is 4 ft./1.22 m. or greater;

(c) Category III, where the lot has a depth of permeable natural soil less than 1 ft./.3 m., and where the depth to bedrock and the depth to the maximum water table elevation is less than 4 ft./1.22 m. (Emphasis added)

(2) Except where such a lot is serviced by a central sewerage system, development of a Category III lot shall not be permitted unless it is upgraded, to the satisfaction of the Minister, to conform with Category II as described in clause (1)(b). (Emphasis added).

In addition, Section 19 of the Planning Act Regulations requires that construction or installation of an on-site sewage system must conform to the requirements imposed by the Sewage Disposal Regulations made under the Environmental Protection Act (R.S.P.E.I. 1988, Cap. E-9).

The Commission finds the evidence presented by the Respondent from the physical evaluation of the site and the P.E.I. Soil Survey to be very strong. The Commission also notes that the Appellant acknowledged during the hearing that he recognizes some limitations of the site, and that he would not be prepared to install an on-site sewage system on the site in its present condition. Based on this evidence, the Commission agrees with the Respondent's conclusion that the site is a "Category III" lot as described in Section 36(1) of the Planning Act Regulations. The Commission further notes that under Section 36(2) of the Planning Act Regulations, this means the lot cannot be developed unless it is served by a central sewage system (not available in this case), or is upgraded to the satisfaction of the Minister to conform with Category II lot requirements.

The remaining question then for the Commission is whether, as provided in Section 36(2) of the Planning Act Regulations, the Appellant's Category III site/lot can be upgraded to the satisfaction of the Minister, to conform with Category II conditions. The Appellant believes he can do this by adding fill and topsoil to and ditching around the segment of the site that would contain the mobile home and on-site sewage system. The Appellant further points out that two neighbouring property owners have indicated that this type of site upgrading has worked for them. He also notes that a contractor has suggested this type of upgrading should work on the site in question.

The Respondent points out that simply adding 3 or 4 feet of fill does not solve a high water table problem. The Respondent explains that the hydrological affect is that the high water table rises up into the added fill and continues to create a problem situation for an on-site sewage system. The Respondent also points out that while the two neighbouring property owners may not have had problems with drainage, this does not mean the same approach would work on the site in question. Each site is unique and must be evaluated separately.

Finally, the Respondent testifies that the Provincial Government commissioned a study by a professional consultant to provide some guidance on what could be done to permit the development of high water table sites with on-site sewage systems. The Respondent's further testimony was that the consultant's conclusion was a site must have at least 2 feet of in-place (natural), permeable topsoil before consideration should be given to adding fill as a possible solution to high water table problems. As the Respondent points out, in the case of the site in question, the depth of topsoil found is 10 inches or less at the three test pit locations.

In view of the lack of any engineering or scientific based evidence from the Appellant to the contrary, the Commission believes it must give the expertise of the Respondent and the Department of Technology and Environment substantial weight. The Commission therefore accepts the Respondent's position that the site in question cannot be upgraded to conform with a Category II ranking by means of the site upgrading initiatives proposed by the Appellant.

The Commission notes that while the Appellant's currently proposed upgrade is not sufficient to move the site from Category III to Category II, Section 36(2) of the Planning Act Regulations continues to provide an opportunity for consideration by the Minister of further proposals, including engineer designed systems.

The Commission does, however, caution the Appellant that it agrees with the conclusions reached by the officials of the Department of Community Services and Attorney General and the Department of Technology and Environment that the high water table and soil conditions on the site in question represent a serious challenge to the suitable installation of a septic system. These conditions are such that professional advice would likely be required by the Appellant. At the same time, if the Appellant decides to hire a consultant, it is still possible that the problems cannot be overcome and the money so spent would be lost. The Appellant may wish to weigh all these considerations very carefully before deciding to move in this direction.

5. Disposition

An Order denying the appeal will be issued.

WHEREAS Lloyd Ellsworth, the Appellant has appealed a March 26, 1999 decision by the Minister of Community Services and Attorney General to deny the issuance of a building permit to relocate a mobile home onto property number 786228 located in Roseville;

AND WHEREAS after due public notice and suitable scheduling, the Commission heard the appeal at a public hearing conducted in Charlottetown on May 25, 1999;

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

The appeal is hereby denied.

DATED at Charlottetown, Prince Edward Island, this 1st day of June, 1999.

BY THE COMMISSION:

Ginger Breedon, Vice-Chair
Norman Gallant, Commissioner
Arthur Hudson, 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.