The court did not retroactively apply amendments that now require approval for all subdivisions
The PEI Court of Appeal upheld a ruling that a property transfer to the deceased's son did not require subdivision approval since the transfer was not for "development purposes.”
The case stemmed from a 2008 transaction in which Harry Lewis, now deceased, transferred a significant portion of his farmland to his son, Orville Lewis. The transfer excluded a two-acre parcel containing the family-operated Lewis Motel, which was not specifically subdivided in the deed.
In 2005, Harry Lewis executed a will instructing that his farmland, known as “Property 47175,” be jointly transferred to his wife, Ella Lewis, and his son Orville. However, in 2008, he conveyed the property solely to Orville, granting Ella only a life interest. Following Harry's death in 2015, the estate—now managed by two of Harry’s children—initiated legal action to review the legality of the transfer. Their challenge questioned Harry’s compliance with the Planning Act and his capacity to execute the deed.
The applications judge ruled that the conveyance of the property did not violate the Planning Act, despite the absence of formal subdivision approval. The judge interpreted s. 12(1) of the Planning Act Subdivision and Development Regulations, concluding that approval is only necessary when a subdivision is made for “development purposes.” The judge found that the continued use of the motel and farmland did not meet the statutory definition of development, as no new construction or significant change in land use was evident.
The estate appealed, arguing that the applications judge committed an error in relying solely on s. 12(1) of the regulations without considering s. 3(1)(a), which prohibits subdivision without proper approval. Additionally, they contended that the judge overlooked certain evidence and failed to address all relevant issues.
However, the PEI Court of Appeal upheld the applications judge's decision. The court determined that, at the time of the conveyance, the only applicable restriction required subdivision approval for development purposes. The court noted that subsequent amendments to the regulations, which now mandate approval for all subdivisions, were not retroactively applicable.
