Hampton Beach Resort Development is looking to operate 14 two-unit cottages near the shoreline in Hampton. Future development may include building a nine-hole, Par-3 golf course.
©Guardian photo by Jim Day
I want to explain why I appealed, and discuss the possible ramifications of my successful challenge of the decision made by the minister of finance, energy and municipal affairs to issue a development permit for the expansion of Blue Spruce Cottage rental business in Hampton on July 23, 2013, because of the perceived change of use of a lot from cottage use only to a commercial use. The permit was issued on the premise that the change of use of the lot was permissible under the provisions of the Planning Act and the subdivision and development regulations. This was not the case as ruled by the Island Regulatory and Appeals Commission in an order issued on March 17, 2014.
The approval was given by the minister, to append the existing summer cottage use only lot, to the larger commercial Blue Spruce property, thus changing the lot’s use to commercial. This change allowed the developer to place eight rental mini homes on the area of the said lot.
The commission found that the designation of cottage use became concrete when the lot was first sold for the purpose intended and thus could not later be altered without a formal change of use process. The commission could not find any regulation that supported the minister’s position.
The authority to append must exist either in the planning act or the regulations in order to be lawful. In conclusion, the lot consolidation or appending process needs to be supported by the planning act and regulations. Accordingly the appending decision was quashed for lack of legal authority. Since the lot is only approved for summer cottage use only, the presence of eight commercial rental cottages is not permitted on such a lot and thus, the development permit was also quashed.
Since the minister has no legal authority under the planning act for the appending of property, then the question arises, as to the legality of all approvals given to append properties in the past. This may have consequences in respect to land use within the province. Property owners that have had approval for appending should be asking this question.
The commission also made several observations and recommendations, due to the facts presented by the appellants.
1. Raised concerns with the policies, directives and statutory tools, or lack thereof, given to those who just deal with applications on a day-to-day basis and appear on the minister’s behalf before the commission.
2. It was not made clear that all aspects of section (3) of the regulations were considered.
a) Detrimental impact on surrounding land use and safety at the highway access.
b) Premature development (sound planning)
c) Entranceways in respect to change of use of existing entranceways or creation of new entranceway. In respect to the requirement of the highway access regulations.
d) Other approvals under Land Protections Act, Road Act, where entranceway permit or approval required.
There was little evidence in the file that indicated that much attention was placed on section 3 of the regulations. The commission recommends that these provisions must be followed.
It had become evident during this appeal that approvals are given by the minister in cases where the highway access regulations are being ignored.
I know of numerous approvals for developments that haven’t taken this into account.
The government is putting itself into a libel position. If entranceway permits are not issued and registered with the deeds to the properties than access would be deemed illegal under the Road Act Regulations. These irregularities are being ignored by the Department of Transportation and Infrastructure and they have the responsibility to enforce the highway access regulations.
People should be aware that if they are not within an area that has an official plan then they come under the provincial jurisdiction and this could happen to you. I site this case as an example.
It should also be noted that the minister has placed government in a position of legal action by both the developer and the appellant.
If people are interested and wish to read the decision go to the website www.irac.pe.ca, McLure versus Minister.
Gary McLure, of Crapaud, is the appellant who appealed the Blue Spruce property development permit issue to IRAC