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IN THE MATTER of
an appeal by Donna Stringer of a decision of the Minister of
Communities, Land and Environment, dated August 12, 2015.
BEFORE THE COMMISSION
Thursday, the 10th day of August, 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 Donna Stringer
John D. Stringer, Q.C.
2. For the Respondent
Minister of Communities,
Land and Environment
3. For the Developers Betty Ann
Bryanton and Gareth Llewelleyn
Betty Ann Bryanton
Reasons for Order
On August 19,
2015, the Appellant Donna Stringer (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 Appellant appealed an August 12, 2015 decision of the Respondent
Minister of Communities, Land and Environment (the "Minister") granting
Development Permit No. M-2015-0087 ("Permit 87") and Development Permit
No. M-2015-0088 ("Permit 88") to the Developers Betty Ann Bryanton and
Gareth Llewelleyn (the "Developers") to change the permitted use of an
existing non-commercial storage building to a summer cottage (Permit
87) and to relocate three non-commercial storage buildings (Permit 88)
on Provincial Parcel Number 931741, located on the south side of 158
Paradise Drive, in the Community of Little Pond (the "subject
The Commission forwarded letters to the Minister and the Respondents
advising of the Appeal and requesting that the Minister provide a copy
of the development application file. On September 4, 2015, a copy of the
application file was received and forwarded via email to the Appellant
and the Developers.
On September 15, 2015, Commission received a letter submission from
Robert MacNevin, legal counsel for the Minister. Mr. MacNevin
acknowledged that "Evidently the non-commercial storage buildings are
used, from time to time, to accommodate people who use them to sleep at
night during the summer months". Mr. MacNevin further advised that as
these "non-commercial storage buildings are not hooked up to water or
sewer systems, they are not considered to be "dwellings". He further
submitted that "There was nothing in the Planning Act
Subdivision and Development Regulations that regulate either the number
or use of non-commercial storage buildings". Mr. MacNevin submitted
that "There was no basis for the appeal to be successful".
On September 18, 2015, the Commission's Appeals Administrator emailed
the parties to facilitate the filing of written submissions and noting
that the Commission was prepared to hear the appeal as early as November
Submissions from Appellant's Counsel were received by the Commission on
October 13, 2015. Submissions were received from the Developers on
November 2, 2015.
On December 9, 2015, counsel for the Minister provided a further
submission by letter, departing from the original position taken in his
September 15, 2015 letter, now stating that "It is the Department's
position that non-commercial storage buildings, which is what Permit No.
N-2015-0088 allows, are not intended to be used as sleeping quarters,
or "bunkies"." [emphasis added] He further submitted that there was
a gap in the Subdivision and Development Regulations that has been
recognized by the Department and he advised that the Department "Will be
creating Regulations to specifically address this issue in the near
future, and he noted that the regulatory changes will be made in the new
year, and as such I suggest that this appeal be put on hold until the
new Regulations come into force. At that time the Department officials
will be in a position to determine if Ms. Bryanton's units are in
compliance with the new Regulations." In response to this submission
the Appellant's Counsel responded noting that statutes and Regulations
are not to be construed as having retrospective operation unless they
are expressly or by necessary implication required in the language of
the regulation. He noted that "It is the view of the Appellant that any
retroactive or retrospective future legislation would be prejudicial to
the rights of the Appellant, thereby giving rise to a presumption
against retroactivity." He requested that the appeal proceed to a
public hearing to have the matter adjudicated.
On January 15, 2016, the Commission advised the parties that the appeal
would proceed to a hearing and invited the parties to indicate their
available dates. After consulting with the parties, the Commission
scheduled the appeal to be heard on June 9 and 10, 2016.
On March 15, 2016, Steven Forbes advised the Commission that he would be
representing the Developers. On March 18, 2016, the Commission received
a letter from Mr. Forbes requesting a change in the hearing date to July
2016. Mr. Forbes also requested the opportunity to file written
submissions. On March 22, 2016, John D. Stringer, Q.C., Counsel for the
Appellant, advised the Commission that he did not object to a July or
August hearing. On March 22, 2016, the Commission's Appeals
Administrator contacted counsel for the three parties to encourage the
parties to reflect on the possibility of alternative dispute resolution
("ADR") and offer the Commission's assistance in providing ADR
services. Subsequently all parties and the Commission agreed to hearing
dates of July 21 and 22, 2016. Dates for filing written submissions and
rebuttal submissions were also agreed to.
Following the receipt of the various written submissions, Counsel for
the Appellant canvassed counsel for the other parties inquiring whether
there was interest in pursuing ADR. By June 3, 2016, all counsel had
expressed a willingness to participate in ADR.
With the agreement of all parties and their legal counsel, ADR was held
on the morning of July 21, 2016 with the Commission's Appeals
Administrator as mediator. The parties were unable to reach a mediated
solution and requested that the appeal be heard by the Commission.
The Commission heard the appeal commencing on the afternoon of July 21,
2016. Legal counsel for all three parties filed an Agreed Book of
Documents which was entered as Exhibit E-1. The hearing concluded on
the morning of July 22, 2016.
Appellant's Testimony and
The Appellant Donna Stringer ("Mrs. Stringer") testified that she
purchased her property in the autumn of 2007. Mrs. Stringer's property
is located adjacent to the subject property. At the time Mrs. Stringer
purchased her property, the Developers had a shed on their property and
also placed a tent and a dining tent on the property for two to three
weeks each year. In poor weather, the Developers slept in the shed.
Mrs. Stringer testified that her cottage contains seven rooms including
four bedrooms. The Appellant provided an aerial photo of the cottages
on Paradise Drive (Tab 27 of Exhibit E-1). The aerial photo has been
annotated to insert descriptions of the ownership of the cottages and
the placement of the "bunkies". The photo shows a total of five
cottages, three of which are the size of the Appellant's, one which is
somewhat smaller and the Developer's converted shed cottage which is
substantially smaller than the others.
Mrs. Stringer testified that on July 20, 2015 a port-a-pottie or free
standing portable outdoor toilet enclosure was delivered to the subject
property. The next day a number of workers arrived with one shed and
started putting in stakes where the shed was to be placed. The second
shed arrived the next day. The sheds were put in place and windows were
installed in the sheds to allow for a view of the water. Mrs. Stringer
testified that the Developers informed her that they were just sheds.
However, Mrs. Stringer could view the workers trying to put queen size
air mattresses into the sheds. She stated that when she questioned the
Developers on what permits they had obtained to be allowed to put the
sheds on the property, the Developers responded that they did not need
permits. The Appellant checked with Leland Wood of the Department of
Communities, Land and Environment and he advised that no permits had
been issued. Mrs. Stringer advised that a few days later after the
initial installation the shed that was closest to the water was moved
and the workmen began setting in pegs for the placement of a third
shed. Pegs for a third shed were later removed.
Mrs. Stringer testified that when she spoke to Leland Wood at a later
time he advised her that the permits were in fact granted, directed her
to the Planning website and told her that in order to get information on
the permits issued to the Developers, she would have to launch an appeal
to the Commission under the Planning Act. When she
received the file as part of the appeal process, she was surprised to
learn that the original shed that had been on the property was now
approved through Permit 87 as a cottage. Mrs. Stringer indicated that
she has a concern over the number of accessory buildings being placed on
this property and was concerned that more sheds were going to be placed
on the property. She also noted that to her knowledge no septic system
was ever installed on the Developers' property.
Under cross-examination, Mrs. Stringer acknowledged that the sheds did
not impede her view of the water and that, to date, her safety and
security were not compromised by the presence of the sheds. However,
Mrs. Stringer did note that in her view the Developers and the
Developers' guests did compromise safety and security as there were no
sanitary facilities on the property and she questioned the cooking and
other sanitary facilities where there was no proper disposal. Under
cross-examination when she was questioned about her concerns about more
sheds, she testified that originally there was pegging put in the ground
for four sheds, but in the end only two sheds were actually put on the
Leland Wood ("Mr. Wood"), is a safety standards officer employed by the
Minister. Mr. Wood was called to testify by Appellant's Counsel. Mr.
Wood testified that he has worked for the Minister first as a property
development officer and then as a safety standards officer, for the past
13 years. He is licensed as a septic inspector. Mr. Wood is not a land
use planner. He testified a summer student working at his office had
taken a building permit application for two "bunkies" from Betty Ann
Bryanton ("Ms. Bryanton") who is one of the Developers. Mr. Wood
testified that he spoke with Ms. Bryanton who confirmed that she was
seeking a permit for "bunkies". Mr. Wood testified that the original
application for the "bunkies" was refused for the reason that there was
no dwelling or cottage on the property at the time of the application.
Mr. Wood testified that he informed Ms. Bryanton that unless the first
storage shed on the property was subject to a change of use to a
dwelling, there could not be any other accessory buildings placed on her
property. Mr. Wood informed Ms. Bryanton that there could only be one
dwelling per lot. Mr. Wood testified that he informed her that a septic
permit would be required in order to change the original shed to a
cottage. He noted that it was a paper application and he did not visit
the subject property. He testified that without the original shed being
approved through a change of use to a cottage the two additional sheds
could not be approved as the "bunkies" were considered to be accessory
buildings. He noted that the term "bunkies" was used in the Developer's
When asked if 20 "bunkies" would be permitted on the subject property,
Mr. Wood replied that approving that many would be questionable as that
would be a large number for one building lot. He acknowledged that the
Regulations do not specify how many would be permissible and noted that
the number allowed is "discretionary". He stated that "lots of people
have four storage sheds". Mr. Wood testified that "bunkies' are not
permitted to be used as accommodations because there is no septic system
connected to the "bunkies". When asked whether you could live in a
"bunkie" he replied "No". Mr. Wood testified that the original
application was for "bunkies" and he told the applicant that they could
not have "bunkies" and he suggested that the application be changed to a
request for two non-commercial storage buildings instead.
Mr. Wood testified that a building may be approved as a cottage if there
is a septic permit, that there is no time limit on septic approval, no
system is first required and no occupancy permit is required. He stated
that with regard to a septic system, staff do not know if its installed
as the building is not inspected and the Department does not follow-up
to determine whether a septic system has been installed. He stated that
the Regulations do not specify a minimum size for a cottage.
Under cross-examination from Counsel for the Minister, Mr. Wood
clarified that site inspections are not performed for every development
permit as resources are not sufficient to do so.
Under cross-examination from Counsel for the Developers, Mr. Wood
clarified that Jay Carr directed him to approve the "bunkies" as
non-commercial storage buildings with the condition attached to Permit
88 that they were not to be connected to water or sewer.
Counsel for the Appellant submitted that the appeal is against the
Minister's decision to issue Permit 87 and Permit 88. He submitted that
there is little disagreement with respect to the facts. He submitted
that where the parties do differ is on the interpretation of the
Planning Act and the Planning Act Subdivision and
Development Regulations (the "Regulations"). He submitted that
the Regulations do not support the issuance of either permit.
Highlights of his oral submissions include the following:
The June 26, 2006 permit
application for the original storage shed had the annotation "future
cottage many years from now". Exhibit E-1, Tab 19, page 4
contains a reference to "bona fide cottage" which suggests that the
Developers do not consider the original shed to be a true cottage.
The change of use application which resulted in the issuance of
Permit 87 identified the original shed which was changed to a
cottage as being 12 by 14 feet for a square footage of 168 square
The original shed, now
deemed to be a cottage, does not have a sewage disposal system. All
that was required was approval of a septic permit form. That paper
approval was issued about one year ago yet no system has been
installed and the Developer has no present intention of installing a
septic system. However, such a system is the underpinning for the
change of use application.
Exhibit E-1, Tab 18,
provides photographs of four structures: the original shed or
"cottage", a small plastic storage shed, a shed used as a "bunkie"
and another shed used as a "bunkie".
No site inspection
occurred for either the change of use Permit 87 or the approval of
the "bunkies" Permit 88.
Past decisions of the
Commission have emphasized a need for clear wording, objective
criteria and the avoidance of arbitrary discretion.
The definition of
"dwelling" under the Regulations is relevant while the definition of
dwelling unit is not.
Granting the permit after
locating the structures on the property is a contravention of Sec.
31 of the Act.
The government did not
proceed properly, there is no current septic system on the property,
there was no site inspection done to determine whether the
structures met the cottage requirements, that both the Developers
and government personnel seemed to take the position that, with
septic systems, all that is required is a permit, not the
installation of the system itself.
The sewage disposal system
to be installed must be the system that was approved and for which a
permit was issued as this is the basis for granting a change of use
to a cottage under Permit 87.
Sec. 42(1) of the
Planning Act states that there cannot be more than one
building used as a dwelling on a lot and that these terms are
defined in the Act. This provision limits the ability to construct
multiple buildings and dwellings and have one lot sprinkled with
"Bunkies" meet the
definition of dwelling as set out in the Act.
Counsel for the Appellant requested that the Commission revoke both
Permit 87 and Permit 88 and require the two "bunkies" to be removed.
Testimony and Submissions on behalf of the Minister
Jay Carr ("Mr. Carr") is the Safety Standards Chief for the Minister.
Mr. Carr is not a land use planner. Mr. Carr testified that he deals
with the more "out of the ordinary" files. He testified that the
Department will not issue permits for "bunkies", they can't, as they are
not provided for in the Regulations. The Regulations do provide for
permits for non-commercial storage buildings, that are not dwelling
units. The Regulations do not state what non-commercial storage
buildings may be used for and nothing in the Regulations prevent
sleeping in a non-commercial storage building. Mr. Carr noted that the
Minister's staff now has one or two inquiries per year about "bunkies"
and the matter is now on the Minister's "radar" and it is expected that
in the future the Regulations will be amended to address "bunkies".
Mr. Carr noted that the present matter involves three sheds on the
subject property, which is a relatively large lot, and in his opinion at
the time it would not have been referred to Planning for consideration
for detrimental impact. He advised that as of two months prior to the
date of giving his testimony the Department now has the safety standards
officers under the Planning Division and that the Department was
recently instructed after a decision of this Commission in another
matter to have their personnel consult more with land use planners in
the Department. He stated that previously it was the environmental
aspects that were the focus of the Department in approving such permit
applications, but now land use planners are also brought in and the
planning aspect to an application needs to be considered. He stated
that having three sheds on one lot was, in hindsight, not properly based
on sound planning principles and if the application were received today
land use planners in the Department would be consulted.
Mr. Carr testified that the Regulations do not set out minimum size
standards for a cottage. He noted that to constitute a dwelling unit a
kitchen and bathroom is typically required.
Mr. Carr explained that licensed septic contractors design a system, buy
registered documents, fill the documents out, send the documents back to
the Minister's staff and are required to notify the minister's staff
when the system is going to be installed. The Minister's staff does not
inspect every system but do random inspection audits. He testified that
if an audit is done and they find a system that has not been installed
then they proceed to enforce the septic tank permit.
Under cross-examination from Counsel for the Appellant, Mr. Carr
testified that the application filed by the Developers was for "bunkies"
but the permit issued was for non-commercial storage buildings. Mr.
Carr stated that non-commercial storage buildings are accessory
buildings and must be accessory to a main use. Mr. Carr also reiterated
that there is no minimum size requirement for a building to be approved
as a cottage. When asked what the Department would do if they
determined that no septic system was installed as in accordance with the
permit, Mr. Carr testified that a letter would be provided providing one
month to install the system and that if nothing was done then the
Department would issue an order providing one month to install the
system. Further enforcement steps could be taken including pulling
septic tank permit if the work was not conducted.
Under cross-examination from Counsel for the Developers, Mr. Carr stated
that the definitions of a "dwelling" and a "dwelling unit" are
considered by the Minister's staff to be essentially the same but they
are technically separate definitions.
Under questioning from the Commission's Chair, Mr. Carr stated that
internal policy now requires planners to be consulted in these type of
circumstances. Mr. Carr acknowledged that sound planning principles
apply to the Planning Act and the Regulations. Mr.
Carr testified that previously sound planning principles were far down
on the list of considerations with applications such as these. As of
the date of the hearing he confirmed that sound planning principles are
now on the top of the list of considerations that must be dealt with.
With respect to the consideration of premature development, Mr. Carr
stated that premature development mostly applies to subdivision matters
but could also apply with respect to the building of rental cottages.
Counsel for the Minister, departing again from the previous written
submission of December 9, 2015 where it was clearly stated that
commercial storage buildings were not intended to be used as sleeping
quarters or "bunkies", submitted that the use of non-commercial storage
buildings as "bunkies" was not prohibited and as such there was no basis
to allow the appeal and rescind the permits. Counsel for the Minister
presented further oral submissions in support of the Minister's
decisions, highlights of which include the following:
There is nothing in the Planning Act or the
Regulations to prohibit the storage of people in
non-commercial storage buildings.
These bunkies might only be used a handful of times per twelve-month
The bunkies were unfinished inside and provided protection from the
It would be absurd to consider these structures to be dwellings. By
way of example, if someone fell asleep in a gazebo, would that fact
make the gazebo a dwelling?
It was not warranted to send the matter to the Minister's planners.
"Bunkies" are a new phenomenon in Prince Edward Island and new
Regulations are being considered to address them.
Sound planning principles are now, as of the date of this hearing,
being used in development applications by the Department.
Having this number of storage sheds on a property is not unusual,
twenty such sheds would be unusual, but here the number involved was
not enough to trigger any kind of a planning review.
"Bunkies" cannot be considered to be dwellings as defined in the
Sec. 9 of the Act is a saving provision that allows permits to be
issued where development occurs and it is then determined that an
application should have been applied for.
Counsel for the Minister submitted that Permit 87 and Permit 88 should
be upheld and the appeal denied.
Developers' Testimony and Submissions
Betty Ann Bryanton ("Ms. Bryanton") is the co-owner of the subject
property. She purchased the property in 2003-2004. Ms. Bryanton told
the Commission that she resides in Ontario. Ms. Bryanton testified that
she was born and raised on Prince Edward Island and wanted a summer
cottage "spot". She visits the subject property a minimum of a week per
year to a maximum of five weeks per year, with the average visit being
two to three weeks.
Ms. Bryanton told the Commission that at first she had a tent on the
property and went to Sally's Beach to use the washroom facilities
there. Ms. Bryanton stated that she needed a well and a building for
the well. In 2006 storage shed #1 was placed on the property and she
tented next to the building, with the building itself being used to
store "our stuff" (e.g. camping gear). There is now a full kitchen in
shed #1. One year prior to the application for Permit 87 and Permit 88
an eight foot by eight-foot shed was put up. Prior to receiving the
septic permit a portable chemical toilet was used.
Ms. Bryanton testified that Leland Wood helped her with the applications
and that she met him to ensure that they complied with all of the
set-back requirements and placements. After consulting him she ended up
moving one of the placements of the "bunkie" further back up on the
property as she was advised that it was not placed properly. Draft
applications were prepared and they were then reviewed by Mr. Wood and
that was when Mr. Wood told her to correct the placement for the lower "bunkie".
She testified that she had told Mr. Wood that she bought sheds hoping
that people would be able to stay in them. Mr. Wood, however, advised
her that there are no "bunkies" permitted in PEI. She was told that
only non-commercial accessory buildings could be used and that fit best
for her as their plan was to use the "bunkies" as storage as well. She
testified that when it came to the placement of the shed, she placed
them on the left side of her property away from the Stringer's property
and out of view of their cottage so that there would be privacy for
anyone who stayed in the "bunkies". She testified that she never
intended to have four "bunkies" on the property, only two "bunkies".
Ms. Bryanton testified that the "bunkies" are small pre-built sheds that
were placed on the subject property and were then upgraded with vinyl
siding and windows. The "bunkies" would allow her guests to sleep in
them rather than in tents when it was raining. The "bunkies" do not
have running water or electricity. An air mattress is used for
sleeping. The original shed has a kitchen and waste is taken care of.
The change of use for the original shed is representative of what it
is. In the summer of 2015 there were more people at the subject
property due to the activity of placing and upgrading the sheds and an
outside portable toilet was used. The "bunkies" are not presently
rented out and she testified that she has no intention to rent out the "bunkies".
When questioned Ms. Bryanton testified that she did not anticipate
putting anymore "bunkies" on the lot.
Under cross-examination by Counsel for the Appellant, Ms. Bryanton
testified that she would consider using an outside portable toilet again
as she had discovered that it was much more convenient than using the
chemical toilet located in the original shed, now the cottage. She has
not ordered an outside portable toilet so far this year. Ms. Bryanton
testified that the cost of installing a septic system would exceed the
benefit of such a system. She maintained that a septic system was not
required; rather only a permit for such system. She stated that
composting toilets were something she was looking into. Waste water
from washing dishes, known as "greywater", goes through a trough and is
drained underneath into gravel and goes into the ground.
Ms. Bryanton testified that the change of use for the original shed was
filed at Mr. Wood's behest. When not used for sleeping, the bunkies are
also used for seasonal storage of items such as a picnic table, wheel
barrow, shovels, rakes, chairs etc.
Under re-direct examination from Counsel for the Developers, Ms.
Bryanton testified that she is willing to investigate alternate waste
disposal methods with the Minister's staff.
In response to questions from the Commission panel, Ms. Bryanton
testified that she never had any intention of installing a septic system
for two weeks per year use. She then added that she would install such
a system if she had to, but she would prefer to utilize a composting
toilet. Ms. Bryanton confirmed that the "bunkies" were unfinished on
the inside and had standard shed type doors.
Counsel for the Developers presented oral submissions in favour of
upholding Permit 87 and Permit 88. These oral submissions include the
With respect to Permit 87, the change of use permit for the original
shed now a cottage, a change of use represents an authorization to
do rather than a certification of what has been done. Ms. Bryanton
has testified that she will consult with the Minister's staff to
deal with alternative options to deal with waste and if necessary,
she is open to installing a septic system.
Both Permit 87 and Permit 88 exist for a period of twenty-four
months from the date of issue. As that time period has not passed
yet, there is no issue of non-compliance today.
With respect to Permit 88, that permit is for three non-commercial
storage buildings. Of these three buildings, two are used as
"bunkies" for at most ten days per year. At all other times, they
are used for storage. The mere fact that an air mattress is placed
on the floor for a few days per year does not turn a shed into a
In this matter there are only two small buildings being considered
as bunkies and this would not be of a sufficient degree to
constitute a detrimental impact. Therefore, there is no need to
have the application evaluated by the Minister's planning staff.
Bunkies are not a prohibited use and there would need to be clear
and express wording to prohibit using non-commercial storage
buildings as bunkies. A right to restrict
narrowly while a right to permit should be interpreted broadly.
There is no clear wording to prohibit the use of these buildings as bunkies.
With respect to the definitions of dwelling and dwelling unit: a
dwelling is a home, apartment building, a duplex etc. while a
dwelling unit is a base unit such as an apartment in an apartment
building. Thus, the definition of dwelling and dwelling unit, which
are found in the same section of the Regulations, should be applied
in the same way.
The Developers contend that both Permit 87 and Permit 88 were
validly granted. However, in the event that the appeal was
successful, what would be an appropriate remedy? Permit 87 is a
matter of compliance only. As for Permit 88, if the two
non-commercial storage buildings used as bunkies were considered to
be dwellings, then the only proper remedy would be to prohibit their
use for sleeping as there would be no reason not to use them for
Counsel for the Minister submitted that Permit 87 and Permit 88 should
be upheld and the appeal denied.
After a careful review of all documents in evidence, the oral
testimony of the witnesses, the written and oral submissions of
counsel for the parties and the applicable law, it is the decision
of the Commission to allow the appeal.
Subsection 28.(1) of
the Planning Act sets out the Commission's
jurisdiction to hear this appeal of both Permit 87 as a change of
use permit and Permit 88 as a development permit:
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 development permit;
(b) a preliminary approval of a subdivision or a resort
(c) a final approval of a subdivision;
the approval of a change of use; or
(e) any other authorization or
approval that the Minister may grant or issue under the Regulations,
appeal the decision to the Commission by filing with the Commission
a notice of appeal.
The objects of the
Planning Act are set out in section 2:
2. The objects of this Act
(a) to provide for efficient planning at
the provincial and municipal level;
(b) to encourage the orderly and efficient development of
(c) to protect the unique environment of the province;
(d) to provide effective means for resolving conflicts
respecting land use;
(e) to provide the opportunity for public participation in the
planning process. 1988,c.4,s.2.
definitions found within section 1 of the Regulations are
(a) "accessory building" means a building
whose use is incidental and subordinate to, and consistent with,
the main or approved use of the lot upon which the building is
(c) "building" means any structure having a
roof supported by columns or walls intended for the shelter,
housing or enclosure of any person, animal, or chattel, and
includes a mini home or mobile home;
(d) "change of use" means
(i) altering the class of use of a
parcel of land from one class to another, recognizing as
standard classes residential, commercial, industrial,
resource (including agriculture, forestry and fisheries),
recreational and institutional uses, or
(ii) a material increase in the
intensity of the use of a building, within a specific class
of use as described in subclause (i), including an increase
in the number of dwelling units within a building;
(f.3) "detrimental impact" means any loss or
harm suffered in person or property in matters related to public
health, public safety, protection of the natural environment and
surrounding land uses, but does not include potential effects of
new subdivisions, buildings or developments with regard to
(i) real property value;
(ii) competition with existing businesses;
(iii) viewscapes; or
(iv) development approved pursuant to subsection 9(1) of the
Environmental Protection Act;
(g.1) "dwelling" means a building or portion
thereof designed, arranged or intended for residential
(i) "dwelling unit" means one or more
rooms used or intended for domestic use of one or more
individuals living as a single housekeeping unit with
cooking and toilet facilities,
(ii) "single unit dwelling" means a building containing one
dwelling unit and does not include mobile homes, but does
include mini homes,
(v.2) "summer cottage" means a single unit
dwelling that is intended to be occupied primarily during the
At the hearing, Counsel for the Minister took the position that the
Minister was correct in issuing both Permit 87 and Permit 88.
However, Counsel for the Minister had taken a different position in
his December 9, 2015 letter to the Commission, as he stated that it
was the Department's position that non-commercial storage buildings
are not intended to be used as sleeping quarters or bunkies. He
advised that Regulations to address the issue would be prepared in
the near future and requested that the appeal be put "on hold" until
the new Regulations come into force.
For the record, the appeal was not held in abeyance and there is no
evidence before the Commission that such regulatory additions have
From a review of the file and the testimony of Mr. Carr, it is clear
that the Minister did not consult with a professional land use
planner prior to issuing either Permit 87 or Permit 88. This causes
the Commission concern, especially where there are compelling
reasons to seek the expertise of a professional planner. The
testimony of Mr. Carr also indicates that the Minister's internal
policy now provides for staff planning professionals to be consulted
on applications such as those filed by the Developers. The
Commission commends the Minister for this change in policy to now
use land use planners on these types of applications.
In the context of
municipal planning decisions, the Commission has often utilized a
two-part test to guide its consideration of an appeal. The
Commission is of the view that the same test should be applied to
appealable Ministerial decisions made under the Planning Act
and the Regulations. In the context of Ministerial
decisions, that test is:
Whether the land use planning authority, in
this case the Minister, followed the proper process and
procedure as required in the Regulations, in the Planning
Act and in the law in general, including the principles
of natural justice and fairness, in making a decision on an
application for a development permit, including a change of use
Whether the Minister's decisions with respect to the
applications for development and the change of use have merit
based on sound planning principles within the field of land use
planning and as identified in the objects of the Planning
The Commission's Consideration of
Permit 87 grants permission to the Developers to change the use of a
non-commercial storage building previously permitted by permit
K-095-2006 to a summer cottage on parcel number 931741 located on the
south side of 158 Paradise Drive in the Community of Little Pond. The
permit is dated August 12, 2015 and expires twenty-four (24) months from
the date of issue. The permit is subject to the structure being erected
in accordance with the approved application sketch and compliance with
the Environmental Protection Act's 15 metre watercourse/wetland buffer
Permit 87 is issued under the authority of the Regulations and
purports to change an existing non-commercial storage building to a
summer cottage. While a summer cottage is a defined term under the
Regulations, a non-commercial storage building is not defined in the
Regulations. The definition of a summer cottage references the
meaning of a single unit dwelling which in turn references a
dwelling unit. The definition of dwelling unit specifies a single
housekeeping unit with cooking and toilet facilities. The testimony
of Ms. Bryanton indicates that there is a kitchen, with wastewater
from washing dishes going through a trough into a gravelled area and
into the ground. There is also a chemical toilet and Ms. Bryanton
has considered using an outside portable toilet in the future as
having used it in the summer of 2015 proved more convenient than
using a chemical toilet.
The evidence given at the hearing was that although a septic system
is required for a dwelling unit to be considered a cottage, such a
system did not have to be installed, but that all that is required
is that a septic permit be obtained. This is an absurdity. While
possession of such a permit may facilitate proceeding with the
construction of a cottage, mere possession of a septic system
permit, without installing the septic system itself, does not
legitimately allow for the use of a cottage. The septic system must
be installed, inspected and approved before the landowners may
occupy their cottage. The presence of an approved septic system is
necessary to protect the environment. The absence of the
installation of an approved septic system places the environment at
The Commission does not endorse the actions of a property owner
taking it upon themselves to install a greywater drainage system
that has not been inspected and approved by the Minister's
environment experts. It should be the Minister's environmental
experts, not the property owner, who decides what is acceptable.
The septic system, which is a condition required under Permit 87,
must be used for greywater disposal as well.
The Minister's staff did not perform a site inspection of the original
12 by 14-foot building prior to issuing Permit 87. In the absence of
such an inspection, and given the testimony of Ms. Bryanton, the
Commission finds that the 12 by 14-foot converted shed does not meet the
definition of a "cottage" or a "dwelling unit" as set out in the
Regulations without the installation of toilet facilities in the unit
itself and without the installation of an approved septic system. The
Commission, therefore, finds that the Minister did not follow an
acceptable proper process of procedure as required in the Regulations in
ensuring that the building that was to be subject to a change of use,
complied with and met the Regulations. The Minister therefore
contravened the first part of the two-part test as enumerated in
The second part of the two-part test enumerated in paragraph 52
requires that the Minister's decision for this change of use have
merit based on sound planning principles within the field of land
use planning as identified in the objects of the Planning Act. The
evidence of the Minister's staff is that at the time this
application was dealt with sound planning principles were far down
on the list of considerations. As of the date of the hearing, the
staff confirmed that sound planning principles are now on the top of
the list of considerations that must be dealt with. This Commission
has found, in numerous past decisions, that there must be evidence
that a proposed development or change of use is consistent with
sound planning principles (Biovectra v. City of Charlottetown,
LA12-06). In determining whether or not a development
proposal should go forward, the Minister must make an examination
beyond the strict conformity with the Regulations and must consider
sound planning principles including, but not limited to, the quality
of architectural design, compatibility with architectural character
of adjacent development, site development principles for the
placement of structures and a thorough assessment of whether the
development is consistent with sound planning principles (Atlantis
Health Spa Ltd. V. City of Charlottetown, Order
alteration of the character and appearance of the neighbourhood must
also not be contrary to sound planning principles (Compton v.
Town of Stratford, Order
The evidence is irrefutable and the Commission finds that the
Minister did not consider whether sound planning principles
supported a decision to approve the change of use of the 12 by 14-foot building from
"non-commercial storage building" to a summer
cottage. As such, the Minister failed to demonstrate adherence to a
key object of the Planning Act, namely efficient
planning based on sound planning principles at the provincial level,
and accordingly, the Commission hereby quashes Permit No.
Consideration of Permit 88
Permit 88 grants permission to the Developer Betty Ann Bryanton to
relocate three non-commercial storage buildings located on parcel number
931741 located on the south side of 158 Paradise Drive in the Community
of Little Pond. The permit is dated August 12, 2015 and expires
twenty-four (24) months from the date of issue. The permit is subject
to the structure being erected in accordance with the approved
application sketch, compliance with the Environmental Protection Act's
15 metre watercourse/wetland buffer zone, and that none of the
non-commercial storage buildings are to be serviced with sewer or water.
Once again, the terminology of "non-commercial storage buildings" is
neither defined nor referred to in the Regulations, although the
term "accessory building" is both defined and referred to in the
Regulations. It is not apparent from the face of Permit 88 that the
non-commercial storage buildings are approved as sleeping quarters
or "bunkies". It was clear from the evidence that the Minister's
staff were well aware that these sheds were bought for and intended
to be used so that people could stay in them. It was the Minister's
staff that advised that this was not permissible, but that the shed
could fall within the Regulations and be permitted to be placed on
the property as a "non-commercial storage building". By accepting
an application, knowing full well that the intended use is not what
is stated on the application, the Minister therefore breached the
first part of the two-part test and did not follow proper process
and handling of the application.
The evidence before the Commission is that at no time did anyone in
the Department seek the opinion of a professional land use planner
with respect to the application which resulted in Permit 88.
The objects of the Planning Act require: efficient
planning, protection of the Province's unique environment, an
effective means for resolving land use conflict and to provide the
opportunity for public participation in the planning process. The
Commission expects decisions made under the Planning Act
and the Regulations to not only follow the legislative requirements
but also be in accordance with sound planning principles. Adherence
to sound planning principles is especially important where, as here,
the legislation has not addressed a particular type of development.
Sound planning principles could consider not only whether "bunkies"
would or would not be permitted, but also, if deemed to be
permissible, determine the number permitted on a parcel, size,
location, appearance, consultation with adjacent property owners and
other such factors.
The Commission reiterates, as set out in paragraph 58 herein, that this
type of development must have merit based on sound planning principles.
Adherence to sound planning principles is especially important where
there are applications to place a number of buildings on a single lot
all of which, for the most part, would be used as "bunkies". Sound
planning principles would determine whether it is appropriate to have a
sprinkling of sheds over a cottage lot property and, if so, what number,
size and location, appearance would be permitted on the parcel, after
consultation with adjacent property owners and consideration of other
factors. (Atlantis Health Spa Ltd. v. City of Charlottetown,
LA12-02). The Planning Act addresses not only
municipalities with Official Plans and land use bylaws but also areas of
the Province which do not have Official Plans and land use bylaws.
Sound planning must be a common feature of development throughout Prince
Edward Island and property owners located in areas of the Province for
which there is no municipal government should not be subject to inferior
land use planning rights and responsibilities. Sound planning
principles are a guard against arbitrary decision making especially
where a regulatory checklist does not address a concern. Sound planning
principles require regulatory compliance but go beyond merely insuring
such compliance and require discretion to be exercised in a principled
and informed manner. Sound planning principles require the decision
maker to take into consideration the broader implications of their
decisions. In order to ensure that sound planning principles have been
followed in anomalous applications a professional land use planner must
be consulted. The Minister's staff admitted that, in hindsight, the
decision to grant the permits for these applications allowing the
placement of three sheds on one lot was not based on sound planning
principles. The Minister's staff further acknowledged that the
applications, if they were now received, would not have been processed
without land use planners being consulted.
The Commission notes that when the Appellant contacted the
Minister's department to get information on the building permits
that were issued she was advised that she would have to launch an
appeal with this Commission in order to get that information. The
Commission recommends that the Minister change this policy when
dealing with inquiries with respect to applications or permits under
the Planning Act. No one should be forced to launch a
quasi-judicial appeal simply to obtain information with respect to a
permit issued by the Minister. As the Commission has seen in the
past this results in numerous appeals being filed, only to be
withdrawn after there is full disclosure to the Appellant with
respect to the permit. The Commission recommends that the Minister
develop an internal procedure to allow for the efficient
dissemination of information on permits issued so that interested
parties can then make a determination as to whether or not an appeal
should be filed.
The Developers' applications to designate a small storage shed a
cottage and receive approval for "bunkies" were not contemplated by
the Regulations and thus required consultation with a professional
land use planner. As the Minister's staff did not consult with a
professional planner, the Commission finds that the Minister failed
to consider sound planning principles. Accordingly, the second part
of the two-part test has not been met and the Commission hereby
quashes Permit No. M-2015-0088.
An Order allowing the
appeal and quashing Permit No. M-2015-0087 and Permit No. M-2015-0088
Appellant Donna Stringer appealed the decision of the Minister of Communities, Land and
Environment to issue two permits, both dated August 12, 2015;
Commission heard the appeal at public hearings conducted in Charlottetown on
July 21 and 22, 2016 after due public notice and suitable scheduling for the
parties and their legal counsel;
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 allowed.
Permit No. M-2015-0087 and
Permit No. M-2015-0088 issued by the Minister on August 12, 2015 are
DATED at Charlottetown, Prince
Edward Island, this 10th day of August, 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.