Title: Order LA17-04 - Docket LA16006 - Planning Appeal - Natacha Freake
v. Minister of Communities, Land and Environment (June 5, 2017)
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IN THE MATTER of
an appeal by Natacha Freake of a decision of the
Minister of Communities, Land and Environment, dated June 30, 2016.
BEFORE THE COMMISSION
Monday, the 5th day of June, 2017.
Scott MacKenzie, Q.C., Chair
M. Douglas Clow, Vice-Chair
John Broderick, Commissioner
Appearances & Witnesses
Reasons for Order
Appearances & Witnesses
1. For the Appellant
Written submissions filed by Natacha Freake
2. For the Respondent Minister of
Communities, Land and Environment
Written submissions filed by
Robert MacNevin, Departmental Solicitor
Reasons for Order
Natacha Freake (the
"Appellant") filed an appeal with the Island Regulatory and Appeals
Commission (the "Commission") under section 28 of the Planning Act, R.S.P.E.I. 1988, Cap. P-8, (the
The notice of appeal was received by the Commission on July 18,
 This appeal concerns a
decision of the Minister of Communities, Land and Environment (the
"Minister") dated June 30, 2016 where the Minister denied the Appellant's
application for a change of use of parcel number 930990 located in Head of
Cardigan from residential to residential/commercial in order to operate a
motorcycle sales shop.
 A copy of the Minister's
file was received by the Commission on August 12, 2016 and Commission
staff provided the Appellant with a copy of this file.
 On August 30, 2016 the
Commission received a written submission from Robert MacNevin, Counsel for
the Minister, dated August 29, 2016.
A copy of this document was also forwarded to the Appellant.
weeks that followed, the Commission staff on several occasions requested
that the Appellant provide further particulars of her grounds of appeal.
 On December 21, 2016 the
Commission staff, not having heard anything further from the Appellant,
emailed the Appellant requesting that the Appellant advise the Commission
whether or not the Appellant wished to have the appeal proceed to a public
hearing before the Commission panel.
The Appellant did not respond.
 On January 10, 2017, as
no response had been received from the Appellant, Commission staff
contacted the Appellant by email and advised that the Commission required
a response from the Appellant on or before January 20, 2017.
The Appellant was advised that if the Commission did not hear back
from the Appellant by that date, then the Commission would determine the
appeal based solely on the written documents and submissions that had been
 No response was received
from the Appellant.
The Appellants' Position
In her Notice of Appeal and follow up email
correspondence filed on September 20, 2016 with the Commission, the
Appellant describes the business she has proposed and expresses the view
that the concerns raised by the Minister would be unfounded.
The following portions of her September 20, 2016 email assist in
setting out her position:
impact of noise, exhaust fumes:
I'm sorry but starting up a motorcycle or a car doesn't make
much noise and barely has any exhaust fumes it's no different then
starting up your own car or bike to lets say go for a ride or go to
work (they are not big diesel truck). You could stand 20-30ft
behind a bike or a car and not smell a thing. My neighbours are
well aware of what I will be doing and did sign a letter stating they
were fine with this.
Hours of operation (really)
like I stated in my last appeal letter I would be only open 8:30am
-4:00(4:30) pm as I have 2 kids and would like my time with them as
for neighbours one has kids the rest don't but it don't mean I don't
respect them but I do think of them as well is why my hrs. would be
strict to those hrs. If any one ever showed up at my door past my
hours I would refuse to show them any thing till I was open again.
They would be able to look around but like a any business if I'm
closed then they will have to come back during business hrs. (you
don't think in a big city dealership have more than I could count cars
out test driving and around hospital and schools and public areas) I'm
out in the country with none of those things are around me I would be
if anything less harmful than the dealers in the city.
impact of increased traffic, explosive material:
Where I live ... it's a main drag it's like your main road to go
to town when you live around here, there's always traffic on this
road. There wouldn't be any extra traffic. Were I am people fly by my
house and there kids at play so if anything it may slow down the
traffic and actually make it a bit safer, people may slow down to look
in. (and no this is not another thing for you to point out to me and
twist it around and say that my dealership would be a safety issue to
kids) ( I'm not going to
be big like the dealers in town I wouldn't even have that much
inventory) And I'm sorry I
have to laugh at this one Explosive material really, if anything a
motorcycle has less "Explosive" components then lets say a car or a
big transfer truck. This is not a movie where if one of my motorcycle
falls over it will "Explode".
If anything it would be safer to have a dealership out in the
country then in the city near hundreds of men women & children,
hospitals, schools etc. I should also put in here All my repairs are
going to a licensed mechanic away from my area (like 15 mins away) so
no harm to the environment will come my way either.
Subsection 3(2) No development
permit: There would be no
changes to my property except the name or which it would be change to
commercial/residential just for the sole purpose of me needing a Gov.
license for my dealership. No difference in the look of my property
except have motorcycles on display at the line of my property with a
 The Appellant requests
that the Commission "... approve of me starting my small business at home
so I may make a better future for my family..."
The Minister's Position
In a letter dated August 29, 2016 Robert
MacNevin, Counsel for the Minister, replied to the appeal and stated that
the Appellant's application to the Minister was one that would require a
change of use of the Appellant's property from residential use to
Mr. MacNevin wrote that such a change of use in this situation could have
a "detrimental impact" on the protection of the surrounding land uses by
creating an incompatible use that is inconsistent with the surrounding
residential properties. Mr.
MacNevin also noted that the Appellant's proposed use of the property
could have a detrimental impact on the surrounding residential properties
with regard to public health (i.e. impact of increased noise, exhaust
fumes, hours of operation, etc.) and public safety (i.e., impact of
increased traffic, explosive materials, etc.).
Mr. MacNevin referred the Commission to Sec. 1(d) and 1(f.3) of the
Subdivision and Development Regulations.
Further, Mr. MacNevin advised that in accordance with subsection
3(2) of the regulations, that no development permit shall be issued where
a use or change of use would not conform with the regulations or other
regulations pursuant to the
After a careful review of the Minister's
file, the submissions of the parties, and the applicable law, it is
the decision of the Commission to deny this appeal. The reasons for
the Commission's decision follow.
 Section 28 of the
Planning Act sets out a right of appeal to the Minister for certain
kinds of land use planning decisions, including decisions pertaining
to a change of use:
28. (1) Subject to
subsections (1.2) to (4), any person who is dissatisfied by a
decision of the Minister that is made in respect of an application
by the person, or any other person, pursuant to the regulations for
(a) a development permit;
(b) a preliminary approval
of a subdivision or a resort development;
(c) a final approval of a subdivision;
(d) the approval of a change of use; or
(e) any other authorization
or approval that the Minister may grant or issue under the
may appeal the decision to
the Commission by filing with the Commission a notice of appeal.
 Subsection 28.(5) of the
Planning Act requires an Appellant to set out grounds for appeal:
28.(5) A notice of appeal to
the Commission under subsection (1) shall be in writing and shall
state the grounds for the appeal and the relief sought.
 Appeals filed with the
Commission sometimes contain grounds for appeal that are vague and
general, and this is understandable when an appellant is not
initially aware of the reasons for a decision maker's decision.
Once an appellant has obtained a copy of the decision maker's
file through the Commission's disclosure process, the appellant will
be in a better position to either advance or withdraw their appeal.
In such circumstances where the initial grounds for appeal
require clarification or further detail, the Commission will
specifically request that an appellant revise their grounds for
appeal after they have had a reasonable chance to review the
disclosed file. By
providing such revised grounds, opposing parties can better
understand the case to be met.
These more complete grounds for appeal also assist the
Commission in determining whether there is an arguable case before
it so that the Commission is able to set the matter down for a
public hearing that is efficient and fair to all parties.
Notwithstanding repeated requests from Commission staff the
Appellant did not provide any further submission with respect to the
Appellant's grounds of appeal and did not provide any further
information or evidence as to what errors, if any, were committed by
 In the present appeal, the
Appellant was clearly unhappy with the Minister's decision and
presented her appeal in the form of a business proposal.
She implied that the concerns raised by the Minister would be
unfounded. She was
unable to indicate where the Minister had erred in his decision.
She was ultimately asked if she wished her appeal to go
forward to a public hearing, but she did not respond.
 In reviewing the Minister's
file, the Commission notes that the Minister followed the advice of
an experienced land use planner who is currently the Manager of
Provincial Planning. The
primary basis for the Minister's concern was that the Appellant's
request for a partial change of use would create a new use that is
incompatible with the surrounding residential properties.
This consideration is very much in accordance with sound
Concerns were also expressed over the possibility of detrimental
impact, as noted in Mr. MacNevin's letter of August 29, 2016
referenced earlier in the Commission's reasons.
 While the Appellant is
clearly unhappy with this decision, the Commission is unable to
identify any errors of law or procedure on the part of the Minister.
 The Commission finds that
the Minister's denial of the Appellant's application was appropriate
and that the Minister did not err in this finding.
Therefore, this appeal is denied.
 An Order
Appellant Natacha Freake has appealed a decision of the Minister of
Communities, Land and Environment, dated June 30, 2016;
the Commission has reviewed the
Notice of Appeal, the file provided by the Minister and written submission
filed by the parties;
the Commission has issued
its findings in this matter in accordance with the Reasons for Order
issued with this Order;
pursuant to the
Island Regulatory and Appeals Commission Act and the
1. The appeal is denied.
DATED at Charlottetown, Prince
Edward Island, this 5th day of June, 2017.
BY THE COMMISSION:
J. Scott MacKenzie, Q.C., Chair
M. Douglas Clow, Vice-Chair
John Broderick, Commissioner
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
13.(1) An appeal lies
from a decision or order of the Commission to the Court of Appeal upon a question of law or jurisdiction.
appeal shall be made by filing a notice of appeal in the Court of Appeal within twenty
days after the decision or order appealed from and the rules of court respecting appeals apply with the necessary changes.
NOTICE: IRAC File Retention
In accordance with the
Commission's Records Retention and Disposition Schedule, the material
contained in the official file regarding this matter will be retained by the
Commission for a period of 2 years.