The Turners' Position
7. The Turners position is
that the Community of Brackley Official Plan 2014 ("the Official Plan")
specifically identifies certain lands that shall be zoned M1.
The Turners state that the Property is located within these
specifically identified lands.
8. Harvey Livingston ("Mr.
Livingston") testified on behalf of the Turners.
Mr. Livingston owns the land to the south of the Property and
operates an auto salvage on his land.
He testified that he originally purchased the Property to prevent a
residence from being built too close to his auto salvage.
Mr. Livingston testified that he later sold the Property to the
Turners. Mr. Livingston believes
that the Property was sold to the Turners in 2014 prior to the public
meeting for the Official Plan review.
Mr. Livingston testified that when the Official Plan was being
reviewed, he spoke with the land use planner, Phil Wood, who prepared the
Official Plan. Mr. Livingston
testified that it was his understanding that the Property was to be included
in the lands to be zoned M1.
9. Derek French ("Mr. French")
is Brackley's development officer.
Mr. French submitted that section 5.4 of the Official Plan, which
pertains to industrial uses, should be read with the whole section in mind.
He submitted that an industrial use on the Property could lead to a
land use conflict with the adjacent residential properties.
He referred to the objectives and policies contained under section
5.4 of the Official Plan which refer to the potential for land use
conflicts. He noted that 23
residents attended the public meeting expressing concern about this proposed
rezoning. He noted that a
petition opposing the rezoning was signed by 35 residents.
10. Mr. French submitted that
the existing A1 zoning of the Property was consistent with sound planning
principles as it would continue to provide a buffer between the auto salvage
and the existing residential properties.
11. Mr. French also expressed
concerns about storm-water, noting that a large roof and parking lot
associated with an industrial building would add to existing storm-water
12. Barbara Jenkins ("Ms.
Jenkins") testified on behalf of Brackley.
Ms. Jenkins has lived adjacent to the Property for 56 years.
She testified that storm-water issues began in 2014 after the Turners
added fill and installed a culvert on the Property.
Ms. Jenkins testified that prior to 2014 the back area of her lot
would be dry by May each year.
She testified that following the addition of fill and a culvert, her back
lot now is dry by July each year.
13. In Prince Edward
Island, an official plan is adopted under statute and binding on a
municipal council1. A
council is responsible for administering the official plan within the
implementing the official plan must be consistent with the official
14. The Turners rely on the
following paragraph contained within section 5.4 of the Official Plan:
The vacant lands on the west side of
the Brackley Point Road to the south of the Royalty Junction
shall also be
zoned as "Industrial" but pursuant to the provisions of the Charlottetown
Region Special Planning Area Regulations industrial developments will be
limited to a maximum of one acre unless full central services are supplied.
Industries which use major amounts of domestic water shall be
discouraged. [Emphasis added]
15. The Commission takes note
of the unusual language used in Sec. 5.4 of the Official Plan.
The language is very specific and not of a type that is usually found
in well drafted official plans.
The Official Plan for Brackley, except for this specific language, is very
much a carbon copy of other official plans that were enacted by other
communities in the Province of Prince Edward Island.
The unusual aspect of the language used in Sec. 5.4 is that it does
not provide broad language of general direction, rather it is very specific
and mandates that vacant lands, which include the property, shall be zoned
as "Industrial". Although no
evidence was led as to how this particular section was added to an otherwise
generic official plan, it leaves no doubt that the vacant lands on the west
side of Brackley Point Road, of which this property comprises a portion, are
to be zoned as "Industrial".
16. The evidence before the
Commission establishes that the Property is currently vacant and was vacant
when the Official Plan came into effect in 2014.
17. Brackley relies on other
provisions within the Official Plan, most notably provisions addressing
conflict of land use and the following "Plan Action" set out in Policy PM-1:
Zoning, contained within section 5.4:
18. The "Plan Action" cited
above introduces the qualification, restriction or limitation in the words "major portion" which is not present in the main body of section 5.4.
19. The Commission takes
notice of the comments of Mr. Justice Spence of the Supreme Court of Canada
in Ottawa (City) v. Boyd Builders Ltd.  S.C.R. 408 Justice Spence of
the Supreme Court of Canada stated:
An owner has a prima facie right to
utilize his own property in whatever manner he deems fit subject only to the
rights of surrounding owners, e.g., nuisance, etc.
This prima facie right may be defeated or superseded by rezoning if
three prerequisites are established by the municipality, (a) a clear intent
to restrict or zone existing before the application by the owner for a
building permit, (b) that council has proceeded in good faith, and (c) that
council has proceeded with dispatch.
20. The Commission also finds
that the comments of Mr. Justice MacDonald of the Supreme Court of Prince
Edward Island (Appeals Division) in Re East Royalty; Affleck v. East
Royalty, Village Commissioners of  P.E.I.J. No. 62, instructive,
wherein he stated:
The case law in this area has been
stated many times and it is that any by-law, regulation or statute that is
restrictive on the common law rights of a person or the liberty with which
he may exercise those rights are to be strictly construed.
If the rights of a person are to be effected it must be done in the
clearest legislative language and if the right is to be restricted by a
municipal government, the authority to do so must be found in the
Planning Act also
makes it clear that an official plan prevails over bylaws or regulations in
the event there is any conflict or inconsistency between the two.4
22. The Commission finds that
section 5.4 of the Official Plan is clear; the Property was to be zoned as
M1 Industrial. No other
conclusion can be reached and general language of a qualifying nature set
out subsequently in the Official Plan does not derogate from that clear,
concise, direct statement.
23. The Commission finds that
there is a conflict between the Official Plan and the Bylaws. The property
should have been zoned M1 Industrial but was zoned A1 Agricultural contrary
to the specific provisions of the Official Plan.
In these circumstances and in accordance with the provisions of the
Planning Act the provisions of the Official Plan prevail over the provisions
of the Bylaw.
24. The Commission finds that
the Turners' application for a rezoning of the Property is supported by the
Official Plan, the Official Plan overrides the Bylaw.
The Commission, therefore, orders that the Property be rezoned to M1
25. The Commission has taken
note of much discussion concerning storm-water run-off issues allegedly
caused by the Turners' placing fill and a culvert on the Property.
There was much evidence that was laid before the Commission with
respect to this action and these issues are quite rightly of significant
concern to the neighboring landowner.
The Commission notes, however, that storm-water management and
drainage and other such matters of concern are well within the jurisdiction
of the Municipality of Brackley to deal with respecting the infilling and
other actions taken by the Turners.
They are also matters that are within the jurisdiction of Brackley to
deal with, if and when a development permit is sought for any further
development on the property.
26. The Appeal is allowed and the
decision of Brackley is hereby quashed.
The Property is hereby rezoned to M1 Industrial.
Brackley is ordered to amend its Zoning and Subdivision Bylaw to show
that the Property has been rezoned from the existing A1 Agricultural to M1
1 Planning Act RSPEI
1988 Cap P-8, s. 14(1)
2 Planning Act, s. 9(1)
3 Planning Act, s.
4 Planning Act, s.15(2). The bylaws or regulations made under
clause (1)(d) shall conform with the official plan and in the event of any
conflict or inconsistency, the official plan