a careful review of the evidence, the submissions of the parties and
the applicable law, it is the decision of the Commission to allow the
 Appeals under the
Planning Act take the form of a hearing
de novo before the Commission.
In the matter of Section 14(1) of the
Island Regulatory and Appeals Commission Act (Stated Case),  2 P.E.I.R. 40 (PEISCAD),
Mitchell, J.A. states for the Court at page 7:
becomes apparent that the Legislature contemplated and intended that
appeals under the
Planning Act would take the form of a hearing de
novo after which IRAC, if it so decided, could substitute its decision
for the one appealed. The findings of the person or body appealed from
are irrelevant. IRAC must hear and decide the matter anew as if it
were the original decision-maker.
 In previous
appeals, the Commission has found that it does have the power to
substitute its decision for that of the municipal or ministerial
decision maker. However, in planning matters the Commission does not
lightly interfere with such decisions.
 The Commission
finds that the two-part test that it has used in the past also serves
as a guideline in determining this appeal.
Whether the municipal
authority, in this case the City, followed the proper process and
procedure as required in its Bylaw, in the
Planning Act and in the
law in general, including the principles of natural justice and
fairness, in making a decision on a rezoning application,
requiring amendments to the Bylaw's Zoning Map and also in this
case requiring a companion amendment to the Official Plan's Future
Land Use Map; and
Whether the City's
decision with respect to the proposed Zoning Map and Future Land
Use Map amendments have merit based on sound planning principles
within the field of land use and urban planning and as enumerated
in the Official Plan.
 In reviewing the
entire application from beginning to final decision of Council the
Commission notes that the City's Planning and Development office
handled this application in a good, business like and exemplary
manner. The application
for rezoning was filed with the Planning and Development office and
was processed by that office in a timely manner.
Public notices were given and public meetings were held,
minutes produced and recommendations made based on facts made
available to Planning and Development staff.
Reports were written and recommendations made to Planning
Board. Planning Board
accepted the recommendations and issued its own recommendation to
Council for approval of the application and the rezoning.
It is clear from the record that the matter was given and
received due consideration from individuals and committees that took
the time to inform themselves to the issues involved in the matter
before them. It is clear
from the minutes of Council that the councillors who chose to speak
had not bothered to inform themselves on the matter of the application
before them. Those
councillors spoke of concerns for which there were answers in the
record, expressed concerns about matters which could have been and
should have been canvassed by them long before they entered the
Council chamber for a vote on such an important matter.
At the Council meeting the chairman of the Planning Board
addressed these issues and answered them in a full and complete
manner. Three of the
councillors voting against the motion did not even see fit to make
comment at the meeting.
 In the minutes for
Council's July 14, 2014 meeting dealing with Hanmac's rezoning
application, the sole reason and explanation for the denial and
rejection of the application was noted as follows:
Concerns were raised with respect to traffic in the area, type of
zoning (R-3) proposed and drainage.
 The Commission is
concerned with the inaccuracies as set out in these minutes of the
meeting. The verbatim
Minutes of Council show that there were no concerns raised with
respect to drainage. The
only reference to drainage was a confirmation from the chairman of
Planning Board that the developers had provided a draft drainage plan
by a certified civil engineer.
Drainage matters may have come up earlier in the application
process but they certainly were not a concern at the regular meeting
of Council on July 14, 2014 and it was improper for that concern to
have been stated as such, in the minutes of Council.
 Following the
decision of Council to reject the application, the Planning and
Development officer then forwarded a letter, dated July 15, 2014 to
Hanmac setting out the following reason for Council's rejection, it
Council felt that it was not appropriate to re-zone a portion of an
outdoor urban recreational space to a zone that would permit a medium
density residential use.
 The Commission is
very concerned with the letter noted above that was forwarded to the
developer. This is the
only communication sent to the developer to explain to the developer
the reason why its application was rejected by Council.
The reason and rationale set out in this letter is not the
reason that is recorded in the Council's Minute of July 14, 2014 and
cannot be gleaned from the verbatim transcript of the Council meeting.
It is not acceptable that the written explanation given to the
developers as to why their project was rejected states a reason that
was not even an issue at the Council meeting.
 In his summation,
Counsel for the City referred the Commission to the decision of the
Newfoundland and Labrador Supreme Court (Trial Division) in Seanic,
supra, and submitted to the Commission that the Commission should not
interfere with the decision of a Council where it is clear that the
councillors were "alive to the issue" before them.
It is apparent to the Commission that the councillors were most
definitely not "alive to the issue" that was before them.
It is also apparent to the Commission that although this
application had been before the City for months, councillors expressed
questions and concerns that could easily have been answered by
discussing the matter with Planning Department staff and by a review
of the application material that had been provided to them by Planning
Board staff. But, instead,
as the record confirms, they chose to enter the Council chamber and
vote on a matter for which they were not fully informed.
 The Commission
finds that the reason set out in the July 15, 2014 letter from the
Planning and Development Officer to Hanmac does not reflect either the
written minutes or the verbatim transcript of the meeting of Council
on July 14, 2014 pertaining to Hanmac's application.
 In Seanic,
supra, the Court referred to a decision of the Supreme Court of
Canada in Congrégation des témoins de Jéhovah de St‑Jérôme‑Lafontaine
v. Lafontaine (Village),  2 S.C.R. 650, 2004 SCC 48.
In that decision, McLachlin C.J. noted the following at
paragraphs 12 and 13:
five Baker factors suggest that the Municipality's duty of procedural
fairness to the Congregation required the Municipality to carefully
evaluate the applications for a zoning variance and to give reasons
for refusing them. This conclusion is consistent with the
Court's recent decision in Prud'homme v. Prud'homme,  4 S.C.R.
663, 2002 SCC 85, at para. 23, holding that municipal councilors must always explain and be prepared to defend
their decisions. It is also consistent with Baker, where
it was held, at para. 43 dealing with a ministerial decision, that if
an organ of the state has a duty to give reasons and refuses to
articulate reasons for exercising its discretionary authority in a
particular fashion, the public body may be deemed to have acted
arbitrarily and violated its duty of procedural fairness.
reasons for refusing to rezone in a case such as this serves the
values of fair and transparent decision making, reduces the chance of
arbitrary or capricious decisions, and cultivates the confidence of
citizens in public officials. Sustained by both law and
policy, I conclude that the Municipality was bound to give reasons for
refusing the Congregation's second and third applications for
rezoning. This duty applied to the first application, and was
complied with. If anything, the duty was stronger on the
Congregation's second and third applications, where legitimate
expectations of fair process had been established by the Municipality
Emphasis added by the Commission
 The direction from
the Supreme Court of Canada is clear: a municipality must carefully
evaluate an application, give reasons when refusing the application
and municipal councillors "must always explain and be prepared to
defend their decisions".
 A careful
evaluation of Hanmac's application was given by the Planning and
Development Officer and by Planning Board and these evaluations
supported Hanmac's rezoning application.
While Council is free to make a decision contrary to the
recommendation of its staff and its Planning Board, as noted in
Congrégation, a municipality must undertake a careful evaluation of
the application before it in order to meet the duty of procedural
fairness. The verbatim
minutes of July 14, 2014 persuade the Commission that there is
insufficient evidence to support a finding that Council carefully
evaluated the application before it.
The Commission finds that the City did not meet the duty of
procedural fairness as it failed to decide Hanmac's application on its
 In considering
whether Hanmac's application is consistent with sound planning
principles, the Commission is mindful that the City's Planning and
Development Officer is an experienced professional planner who
prepared her report for Planning Board and testified before the
Commission. Indeed, the
Planning and Development Officer has testified before the Commission
on several matters over the years and the Commission remains impressed
with her knowledge, professionalism and candour.
The City's Planning Board also recommended in favour of
granting Hanmac's application for rezoning.
 However, the
Commission must also be satisfied that an application for rezoning has
the support of the Official Plan.
The Commission notes the following provisions of the Official
Plan that are germane to an assessment of both Hanmac's application
and the existing status of the Subject Property from the perspective
of sound planning principles.
3. DIRECTING PHYSICAL GROWTH
The City of
Charlottetown will strive to create for its residents a truly unique
environment in which to live, work, and play. It will protect the
distinct character of the municipality while at the same time
encouraging compact urban form and creative
approaches to residential, commercial, and industrial development.
The City will continue to build on its past by stimulating the
revitalization of heritage resources; maintaining the special
qualities of Charlottetown's neighbourhoods; and safeguarding the
municipality's open space characteristics and view corridors.
3.1 Guiding Settlement
As a recently
amalgamated municipality, Charlottetown has a unique window of
opportunity to create a growth profile that will help shape the City's
urban fabric well into the 21st century. In large measure, the way in
which the municipality now chooses to guide its settlement patterns
will provide the template that molds urban development--and the
quality of life issues which arise from it--for many years to come.
effective municipal growth management program is founded on the
principles of fiscal efficiency, environmental conservation, and urban
containment. In Charlottetown, this means that the City will
maximize the use of existing underground services
before new water and wastewater lines are extended into areas that are
essentially undeveloped. Finally, it means that moderately higher density development may be permitted in existing
commercial areas and arterial corridors where it does not interfere
with existing built-up residential neighbourhoods...
measures will promote compact and contiguous
development patterns, the deployment of efficient municipal services,
and the preservation of significant resource areas for present and
future generations. This approach will enable the City to
anticipate growth, identify areas and services which can accommodate
it, while also minimizing fiscal expenditures and environmental
impacts. To this extent, it will ensure that
urban growth in Charlottetown takes place in a rational, efficient,
and orderly fashion, as well as being consistent with the
provincial government's general land-use policy.
Defining Our Direction
Our goal is to develop
settlement patterns which are efficient in their use of land resources
and cost of servicing, encourage equitable and harmonious community
relationships, and help to sustain Charlottetown's distinctive
character and identity.
objective is to contain urban sprawl by introducing a staging
strategy for new development, and to ensure that there is
concurrency between proposals for new development and the
provision of underground municipal services.
policy shall be to direct urban growth to land that is a logical
extension of an existing urban area, or neighbourhood, and will be
serviced by municipal water and wastewater systems;
Our policy shall be
to monitor the long-term public costs of additional
infrastructure, public services, and public service facilities
prior to approving development proposals.
policy shall be to place each key re-urbanization area identified
in subsection 3.6 in a Comprehensive Development Area zoning
designation until such time as a detailed concept plan has been
prepared and adopted.
policy shall be to have the responsible municipal departments
ensure that adequate infrastructure and servicing facilities are
in place prior to, or are developed concurrently with, new
objective is to promote compact urban form and infill development,
as well as the efficient use of infrastructure and public service
Our policy shall be to allow moderately
higher densities in neighbourhoods, and to allow in- law
suites in residential land-use designations, and to make provision
for multiple-family dwellings in the downtown core, and
multiple-family dwellings in suburban centres
and around these centres provided it is development at a density
that will not adversely affect existing low density housing.
Our policy shall be to encourage in-fill
development through public land assembly initiatives,
flexible zoning provisions and the reduction or waiver of
development fees for small or irregularly shaped lots and, when
warranted, the use of tax incentives within fully serviced areas
of the City.
Our policy shall be to use existing underground services to
its fullest practical capacity before public funds are used to
extend new water and wastewater lines into areas that are
added by the Commission]
In most municipalities,
the neighbourhood is the basic building block of residential
development and community identity. Every neighbourhood has its own
distinguishing characteristics which help to identify it as an
individual entity, as well as to set it apart from adjoining areas. In
Charlottetown, the former communities which now comprise the new
municipality, retain their distinctive characteristics and sense of
identity. Indeed, even within the former communities there are several
districts -- such as Brighton, Spring Park, Marysfield, and Lewis
Point -- which are seen as distinct neighbourhoods.
In order to preserve
the unique characteristics of Charlottetown's neighbourhoods the
CHARLOTTETOWN PLAN introduces policies which promote both stability
and community identity. The aim is to sustain vibrant neighbourhoods
which have a distinct sense of community, are places of close social
contact, and are generally enjoyable. This is the clear preference of
it is also important to recognize that change which results from
economic and social transformation is already having an impact at the
neighbourhood level. Smaller households, a decrease in family-oriented
households, an aging population base, and an increase in home-based
businesses are several of the factors for some needed flexibility in
housing densities, design options, permitted uses, and lot sizes
within Charlottetown's neighbourhoods. With some future adjustments in
development standards, the City's residential communities will be
better able to sustain a diversity of household types and lifestyles,
and continue to be vibrant places to live.
Similarly, if Charlottetown's neighbourhoods are to remain healthy and
sustainable, the policies of this plan should enable people to
continue to reside in their residential communities as they move
through various ages and stages of their lives. The provision
of community-based services, appropriate public realm amenities, and
reasonable access to shopping and facilities are measures which will
support this aim.
As a new municipality,
it is also important for Charlottetown to find ways to embrace its
various neighbourhoods and bind them into the larger community. To
some extent, the passage of time -- along with the equitable
distribution of municipal services and amenities -- will help to solve
this issue. However, the City also needs to provide physical linkages
which will connect each neighbourhood to others, as well as to the
downtown core and the suburban centres. The green space connector
system shown on the Future Land-Use Map lays the foundation for these
physical connections. Upon its completion, it will not only help to
link neighbourhoods together, but also provide residents with the
opportunity to walk or cycle to a variety of destinations within the
Defining Our Direction
Our goal is to maintain
the distinct character of Charlottetown's neighbourhoods, to enhance
the special qualities of each, and to help them adjust to the
challenges of economic and social transformation.
Our objective is to
preserve the built form and density of Charlottetown's existing
neighbourhoods, and to ensure that new development is harmonious
with its surroundings.
Our policy shall be
to ensure that the footprint, height, massing, and setbacks of new
residential, commercial, and institutional development in existing
neighbourhoods is physically related to its surroundings.
Our policy shall be
to establish an appropriate relationship between the height and
density of all new development in mixed-use residential areas of
Our objective is to
allow moderately higher densities and alternative forms of
development in any new residential subdivisions which may be
established, provided that this development is well planned
overall, and harmonious with existing residential neighbourhoods.
Our policy shall be
to permit moderately higher densities in new neighbourhoods and to
permit in-laws suites in residential land use designations and to
make provision for higher density residential projects located in
the Downtown Growth Area which is located in the Downtown Core
Area and to permit multiple unit developments
in suburban areas provided that it is development at a density
which will not unduly adversely affect existing low density
Our policy shall be
to allow a mix of residential, commercial, institutional, and
recreational uses in new subdivisions which are established,
provided that there is a comprehensive site plan which ensures
that development is well-related to both its internal and external
The demand for
recreation and leisure activities in Charlottetown -- and throughout
Canada -- is changing. Increasingly, people are demanding a greater
variety of facilities and programs. In the years to come, the
challenge for the City will be to provide traditional recreation and
leisure activities while at the same time responding to changing
demands. The trends and issues that will increasingly begin to
influence the delivery of these services are:
an aging population
changes in the type
of activities demanded by this population; and
the ability of the
City to respond to these changing demands.
5.2 The City's Public Places
The way in which we
inhabit the land is often articulated through our public places. These
special spaces... be they natural, groomed, or fabricated features in
the community, are elements that make our daily lives richer and more
vivid ... and by the physical facts of their location provide a deeper
resonance with the place that is Charlottetown.
In addition to
sustaining special relationships between people and their
surroundings, the City's public places
directly affect both residents and visitors' perceptions of
Charlottetown's quality of life. Indeed, there is a very positive
public image of the City because of its many public places, its
harbour setting, and its collection of heritage buildings. The civic
squares, for example, are firmly rooted in the City's earliest plans,
and are an integral part of Charlottetown's image and identity.
Indeed, all of Charlottetown's public places allow us to gain
knowledge about the seasons, the structures, the incidents and
lives--human and otherwise--that exist in our home territory. As such,
it is important to preserve and build on these fundamental elements
which contribute so much to the City's image and sense of place.
Defining Our Direction
Our goal is to provide
a diversity of public places throughout
Charlottetown to ensure that residents and visitors can relax,
celebrate, and enjoy the City's many distinct urban and natural
Our objective is to
encourage the upkeep, and to nourish the creation, of open spaces and
public places of a grander scale which befit Charlottetown's role as
the provincial capital.
Our policy shall be
to manage the large open spaces of Charlottetown as part of the growth
management strategy, and to ensure that they are protected as long as
is reasonably possible from urban development.
Our policy shall be to protect, maintain, and enhance the public
places of Charlottetown.
 Sections 5.1 and
5.2.1 have been referenced in the oral testimony of the City's
Planning and Development Officer as some of the provisions within the
Official Plan which lend support to a retention of the current open
space zoning for the Subject Property.
Section 5.1 pertains to the City's recreational needs while
section 5.2.1 pertains to the City's public places.
 The Subject
Property is privately owned and thus it should not be confused with a
publicly owned open or "green" space such as municipal parkland.
The Subject Property, although zoned open space, is not one of
the City's public places.
 The testimony
before the Commission is that development of the Subject Property in
no way restricts the existing recreational services provided by
Belvedere. Indeed, such
development may assist Belvedere in remaining viable and thus
continuing to provide an important recreational need.
 Section 29 of the
City's By-law sets out the provisions with respect to the Open Space
Zone (OS). Section 29.1
list the permitted uses within that zone:
29.1 PERMITTED USES
.1 active and passive
.2 band shell;
.4 curling Club;
.5 Golf Course and
.6 Officers Club;
.7 Open Space;
.10 Public Park;
.11 public recreation
.12 trails and fields.
 The Commission
notes that a rejection of Hanmac's rezoning application maintains the
open space zoning of the Subject Property and as such, the permitted
uses applicable to a private landowner would be rather limited.
The Commission finds that the Subject Property is privately
owned, underutilized, and, according to the evidence presented to the
Commission, it is of little benefit to the operations of its present
 The Commission
finds that Hanmac's application for rezoning promotes compact urban
form, while offering a medium-density development that is more
compatible with the existing residential neighbourhood than a
high-density residential development.
The subject parcel is well within existing water and service
lines and is adjacent to Kensington Road, a major street within the
City. Hanmac's application
also assists in providing some visual buffer between the commercial
and residential portions of the immediate neighbourhood.
As a limited scale development using under-utilized golf course
land, it does not negatively impact upon the adjacent developed green
space occupied by the golf course.
As a medium density development located adjacent to a golf
course and a commercial area, it does not negatively impact upon the
existing neighbourhood. It
provides housing variety within the neighbourhood which will allow
residents in transition, or those undergoing "economic and social
transformation" to remain within their neighbourhood, a factor of
considerable importance referred to in the Official Plan.
Hanmac's development is rational, efficient, orderly and
addresses the needs for housing diversity.
 Counsel for the
City submits that the application for rezoning would result in what is
referred to as spot zoning.
This assertion is contrary to the determination of the City's
own Planning Department and the opinion of the City's own planners as
noted in the Planning Department's report to Planning Board for its
consideration of this application.
This Commission finds that based on the evidence before it this
application for rezoning is not spot zoning.
 In Charlottetown
(City) the Island Reg. & Appeals Com. 2013 PEICA 10, Chief Justice
Jenkins of the Court of Appeal stated:
However, where, as here, Council fails to decide an application for
development on its merits in accordance with the applicable municipal
law, which is enabled by the Planning Act, and decides the application
based on irrelevant considerations, then there is no basis for
That is because there is no decision upon which to defer.
In the Commission's words, deference to a decision
maker is earned when the decision maker follows the process set out by
the bylaw and is fair to all parties.
Where, as here, the process was not so followed, the
Commission was unable to show deference to Council's decision.
 In the present
appeal, the Commission finds that the Council failed to decide the
application for the development on its merits in accordance with the
applicable municipal law and finds that Hanmac's proposal for
development of the Subject Property demonstrates clearly superior
planning compared with the current use of the property.
 The appeal is
allowed, and the City's July 14, 2014 decision to deny Hanmac's
rezoning application is hereby reversed.
The Commission orders the City to approve an amendment to
Appendix "A"- Future Land Use Map of the Official Plan from
Recreational to Medium Density Residential and an amendment to
Appendix "H" - Zoning Map of the City of Charlottetown Zoning and
Development By-law from Open Space (OS) Zone to Medium Density
Residential (R-3) Zone in order to rezone a portion of the property at
1 Greensview Drive (PID# 279091).