Walter v. Debra Bradbury, 2012 NLTD 31

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : Bradbury v. Eastern Regional Appeal Board , 2012 NLTD(G) 31 Date : 20120 306 Docket : 200901T4626 BETWEEN: Walter and Debra Bradbury APPELLANTS AND: Eastern Regional Appeal Board FIRST RESPONDENT AND: THE TOWN COUNCIL OF CARBONEAR SECOND RESPONDENT ___________________________________________________________________ Before: The Honourable Madam Justice Deborah E. Fry ___________________________________________________________________ On appeal from: A Decision of the Eastern Newfoundland Regional Appeal Board pursuant to

section 46 of the Urban and Rural Planning Act , 2000, S.N.L. 2000, c. U-8 dated the 22 day of June, 2011. Place of Hearing: St. John’s , Newfoundland and Labrador Date(

s) of Hearing: February 21, 2012

Summary: The Town Council of Carbonear denied a permit to construct a dwelling because the property lacked adequate road access and services as required by

section 9 of its Development Regulations. The Eastern Newfoundland Regional Appeal Board upheld the Council’s decision. On appeal to this Court, no error of law or excess of jurisdiction was identified which would justify the court overturning the Board’s decision. The appeal was dismissed. Appearances: Walter and Debra Bradbury Appearing on their own behalf

No Appearance On behalf of the First Respondent William Finn, Q.C. Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Clarenville v. Eastern Regional Appeal Board , 2004 NLSCTD 101 ; Paradise (Town) v. Newfoundland and Labrador Eastern Regional Appeal Board , 2010 NLTD(G) 116. STATUTES CONSIDERED: Urban and Rural Planning Act , 2000, S.N.L. 2000, c. U-8; Municipalities Act, 1999 , S.N.L. 1999 c. M- 24; Highway Traffic Act , R.S.N.L. 1990 c. H-3. RULES CONSIDERED: Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D.

REASONS FOR JUDGMENT Fry, J. : INTRODUCTION [ 1 ] The appellants acquired land in August 2006 in the Carbonear area. They planned to retire and build a home there. They applied to the Town Council on April 23, 2009 for a permit to construct a single dwelling on their property located on a service road leading to Bunker Hill (referred in their documentation as "nameless road"), between Bunker Hill and English Hill, within the Highway reservation of provincial Route 70.

In a letter dated June 10, 2009, the Town indicated that the application was not approved because the property lacked adequate road access and services as required by

section 9 of the Development Regulations. [ 2 ] The Bradburys commenced development without a permit and on July 7, 2009 the Town issued a stop work order. [ 3 ] The Bradburys appealed the Town’s decision not to grant a permit to the Eastern Newfoundland Regional Appeal Board (the Board) pursuant to

section 46 of the Urban and Rural Planning Act , 2000, S.N.L. 2000, c. U-8. The Board held a hearing on September 22, 2009 and upheld the Town’s decision to refuse to issue the permit in its decision of October 8, 2009. [ 4 ] The Board accepted the evidence that the service road, passing in front of the Bradbury's land was located partially within the road reservation of Route 70, a provincial highway under the jurisdiction of the provincial government.

There is no dispute between the provincial government and the Town that the road in question lies within the road reservation of the highway of the provincial government. [ 5 ] The appellants sought and were refused access by the province to the road reservation for the purposes of using it to access their property. [ 6 ] The Bradburys appealed to this court on October 15, 2009 setting forth as their ground of appeal. “We were denied a permit to build a home in Carbonear.” After being advised by the appellants that they had additional evidence that had not been presented to the Appeal Board, the Chief Justice issued an order on October 4, 2010 as follows: “2.

The Eastern Newfoundland Regional Appeal Board is directed to:

i) on notice to the Town of Carbonear and to Walter Bradbury and Debra Bradbury, reopen the hearing of the appeal of the Town's refusal to issue a building permit in order to give the appellants such opportunity as the Appeal Board considers appropriate to introduce fresh evidence relevant to the appeal; ii) reconsider its decision of September, 2009 [sic] taking into account any fresh evidence received by the Board.

3. The decision of the Appeal Board of September, 2009 [sic] dismissing the appeal remains in effect unless and until changed by the Appeal Board following reconsideration 4. The Notice of Appeal in this proceeding remains in effect.

Should the appellants wish to appeal any reconsidered decision of the Appeal Board, they may reinstitute the appeal in this proceeding by means of notice in writing to the court and to the appropriate parties.” [ 7 ] The Board reconvened on the 21st day of June 2011 and considered the additional evidence and further submissions and issued its decision affirming the previous decision. [ 8 ] The Bradbury's refreshed their appeal with the court on July 5, 2011 noting the following ground of appeal: “We were denied a permit to build our home in Carbonear.

The town says the NL government owns it and the NL government says the town owns it. The road has been on the map since 1998 and the town has taken ownership of this road by using and maintaining it.” [ 9 ]

Section 46 of the Urban and Rural Planning Act , 2000 states: 46.

(1) A decision of a Board may be appealed to the court not later than 10 days after that decision has been received by the appellant.

(2) An appeal of a decision of a Board under subsection (1) may be made on a question of law or jurisdiction.

(3) A Board may be represented by counsel and heard on an appeal under this section.

(4) The court shall either confirm or vacate the order of the Board and where vacated the court shall refer the matter back to the Board with the opinion of the court as to the error in law or jurisdiction and the Board shall deal with the matter in accordance with that opinion. [ 10 ] The appellants have been advised on two previous occasions in appearances before this court of the requirement to plead and demonstrate to the court either an error of law or jurisdiction of the Board.

They have been advised that the court has no jurisdiction to issue a permit and that their appeal will not result in a rehearing of the matter. They have been advised to seek legal advice and/or to obtain some assistance in setting out their grounds for appeal or in arguing the matter before the court. [ 11 ] The second respondent’s Brief of Law and Argument sets out the standard of review to be applied and reviews the basis on which the Town and the Appeal Board reached their respective decisions.

The appellants filed nothing beyond the notice of appeal referred to above but did during the course of argument make reference to several sections of the Municipalities Act, 1999, S.N.L. 1999 c. M-24, which will be dealt with later. ANALYSIS [ 12 ] The appeal before this court pursuant to the Urban and Rural Planning Act , 2000 is limited to questions of law or jurisdiction. In Clarenville v.

Eastern Regional Appeal Board , 2004 NLSCTD 101 at paragraph 20 , Adams, J. stated that this means “An appeal to this Court from a decision of a board must be based on a question of law or jurisdiction, that is a decision of the board by which it makes a legal determination or

interpretation or one which brings into question its jurisdiction to make any particular decision it has made.” [ 13 ] At paragraph 21 of the same decision, it was determined that the standard of review which was to be applied in reviewing the Board’s decision on a question of law or jurisdiction was correctness. Justice Dunn in Paradise (Town) v.

Newfoundland and Labrador Eastern Regional Appeal Board , 2010 NLTD(G) 116 adopted these statements as properly setting out the law in these circumstances. [ 14 ] In this case, the Eastern Newfoundland Regional Appeal Board rendered two decisions; the second confirming the first after considering the additional information provided by the Bradburys and the Town in response.

Board Decisions [ 15 ] The first Board in reaching its decision received technical advice on the Carbonear Municipal Plan, the Carbonear Developmental Regulations and noted specifically that: “CARBONEAR MUNICIPAL PLAN The Carbonear Municipal Plan and Development Regulations came into legal effect on December 24, 2004.

Municipal Plan policies for Residential, 2.2.3, state "Development may be permitted only on sites which are directly accessible to a public street." Development Control Policies 4.3 state "In instances where Council determines that a development proposal is premature due to the lack of adequate services (e.g., roads, water mains and sewers), the development may not be allowed unless the developer is prepared to pay the cost of providing the needed services to the standard required by counsel.”.

CARBONEAR DEVELOPMENT REGULATIONS According to the Carbonear Development Regulations, the subject property is located within the Residential -Rural (RR) Land Use Zone. The proposed single dwelling is a permitted use within the RR Zone, subject to developmental standards, including a minimum frontage of 30 metres. Pertinent citations from the Carbonear development regulations include: 9.

Permit Not to be issued in Certain Cases: Neither a permit nor approval in principle, shall be issued for development within the Planning Area when, in the opinion of the Authority, it is premature by reason of the site lacking adequate road access, power, drainage, sanitary facilities, or domestic water supply, or being beyond the natural development of the area at the time of application unless the applicant contracts to pay the full cost of construction of the services deemed necessary by the Authority and such costs shall attach to and upon the property in respect of which it is imposed. 48.

Lot Frontage: Except where specifically provided in the Use Zone Tables in

Schedule C of these Regulations, no residential or commercial building shall be erected unless the lot on which it is situated fronts directly onto a street or forms part of a Comprehensive Development Scheme. [ 16 ] The Board concluded that the Town did have the authority to deny development of a lot that lacked the appropriate roadway infrastructure as well as confirmed the Town’s right to pass on costs to the applicant to develop a road and other services to meet the Town's standards. [ 17 ] The Board considered the Town’s Development Regulations which prohibit building on a lot that does not have frontage on a publicly maintained road.

The Board also considered the Town’s position that it did not own the land on which the roadway corridor would be located. Furthermore, it would be contrary to the Town's Municipal Plan and relevant regulations to use taxpayer’s money to fund a road development, as the developer should be required to bear the cost in accordance with the Municipal Plan and regulations.

The Town noted that they had previously turned down other applicants in similar circumstances until agreements were reached with respect to the cost of providing services necessary to receive a permit. [ 18 ] The Bradburys asserted to the Board that the Town and many other people in the community used this gravel service road and that the Town's actions in grading, and plowing the service road from time to time demonstrated that the town maintained and/or owned the road in question.

The Board concluded after reviewing the Town’s documents and evidence that the maintenance of the service road may have created an illusion that the roadway was publicly maintained but the Board found insufficient evidence to support the argument that the roadway was publicly owned and maintained by the municipality. The Board stated in its conclusion: “In arriving at their decision, the Board reviewed the submissions made by the Town and the Appellant and the technical information and planning advice that was presented as evidence.

Specifically, the Board considered the Town of Carbonear Municipal Plan and Development Regulations and Council’s authority to reject development in areas that it considers premature and deficient of infrastructure and services and in situations where the development standards are not met. In this case, the Board concluded that the Town has the authority to deny the permit to build a residence on the property as the lot has no frontage on a publicly maintained road.

It is binding upon the town to permit development only in accordance with its Municipal Plan and Development Regulations.” [ 19 ] A new panel of the Board conducted the rehearing on June 21, 2011. In addition to the contents of the previous appeal and the decision, additional information was provided to the new Board.

The new information was described in the decision of the Board as follows: “Information from the Bradburys: • maps of Carbonear obtained from the town's website, telephone book and Google maps; • tourism maps illustrating the town of Carbonear ; • correspondence supplied by local property owners and former Town staff and Council Information from the Town of Carbonear: • The package of information which included a real property report, Council minutes, photographs, correspondence with the Provincial Government and the Town’s solicitor, the Town of Carbonear Limits of Servicing Agreement with the Department of Municipal Affairs (effective since 1991), and a list of snow clearing street classifications.” [ 20 ] The argument of the Bradburys at this second hearing was that the road on which they wish to build is maintained by the Town. [ 21 ] The Town presented evidence that part of the “nameless road” is not within its jurisdiction, but rather within the jurisdiction of

the provincial government. The Town also noted that there were many service roads and rights of ways within the Town that the Council does not maintain as they are not approved town streets.

The Town’s decision to refuse a permit was on the basis that the application is contrary to the Municipal Plan and Development Regulations due to the fact that the property lacks adequate road access. [ 22 ] The Board accepted the Town's argument that the Municipal plan and Development Regulations require that road infrastructure to permit development must meet Council standards and the cost to develop roads must be borne by the developers.

The Board further accepted the Town's argument that control over the “nameless road” is not within the jurisdiction of the municipality. [ 23 ] The Board did not accept the argument of the Bradburys that illustrations on roadmaps and tourism maps which show the “nameless road” constitute official municipal roads for development purposes. [ 24 ] The Board accepted the Town’s position that it could not approve a development that is in contravention of its Municipal Plan and Development Regulations.

Appellants’ Position on Appeal [ 25 ] The appellants took the position on appeal that the Board committed an error because they did not interpret the Municipalities Act , 1999 correctly. The appellant said that the highway road reservation should not be considered under the control of the Department of Highways and Transportation because of the operation of section 11 (2) (

b) of the Municipalities Act , 1999 which states: 11.

(2) Where an order is made increasing the area of a town, (

b) all highways, lanes, sidewalks, bridges and other public ways in the area taken into the town shall become the property of that town; and [ 26 ] The appellants argued that the area of the Town has increased and that the road reservation of the highway and the highway are now property of the Town and that the Town did not inform the Board of this. [ 27 ] Although counsel for the second respondent was not given any notice of this argument, he directed the Court's attention to section 163 (1) of the Municipalities Act, 1999 which states: 163.

(1) The ownership, management and control of all highways, sidewalks and bridges in the municipality, except highways vested in the Crown under

section 5 of the Works, Services and Transportation Act, are vested in the council. [ 28 ] The appellants assertion neglects to take into account the definition of “highway” provided by section 2(1) (

l) of the Municipalities Act, 1999 which states: 2.

(1) In this Act (l) “highway” means a highway as defined in the Highway Traffic Act ; [ 29 ] The definition of "highway" in the Highway Traffic Act , R.S.N.L. 1990 c. H-3 is very broad and is not confined to the way that the appellants have used it and the way many people use it when referring to, for example, the Trans Canada Highway and the various other secondary highways in the province. The term is defined as follows: 2.

In this Act (aa) "highway" means a place or way, including a structure forming part of the place or way, designed and intended for, or used by, the public for the passage of traffic or the parking of vehicles and includes all the space between the boundary lines of the place or way; [ 30 ] The Highway Traffic Act provides, among many other things, a statutory scheme which provides for rules of the road and the enforcement of same on highways (which includes all public roads in a city, town or municipality and for example allows for municipalities to set speed limits on town streets (highways). See for example

section 189 of the Municipalities Act, 1999 189.

(1) The Minister of Works, Services and Transportation may by order delegate to the council of a municipality power to make regulations, which shall not conflict with this Act, (

a) fixing the maximum or minimum speeds at which motor vehicles may be driven upon a highway in the municipality; [ 31 ] The appellants have misconstrued the operation of these sections taken together without any consideration of the definition of terms and the exemption provided for highways that are vested in the Crown. These sections do not remove Route 70 or the road reservation from the purview of the Crown nor do they operate to transfer this highway to the municipality. There was adequate documentation before the Board between the Province and the Council which established provincial ownership of the highway and the

reservation. There is no dispute between the Province and the Council on this issue. The appellant’s argument on this point is without merit. [ 32 ] The second error that the appellants allege the Board made was not to accept that the service road, which was plowed by the Council and used from time to time by emergency vehicles, was sufficient to allow for their permit to be issued. They argued that many people drove over this gravel service road and if it was not up to the Town standards for development, then the Council should take the necessary steps to upgrade it. [ 33 ] The third argument, the appellants raised with the court was that

Article 2.2.4 of the Carbonear Municipal Plan, provides: “Rural Residential density will be maintained in unserviced or partially serviced areas such as the upper levels of Chapel Hill and Bunker’s Hill, Line Road and the upper levels of Saddle Hill. Development in these areas may be permitted on building lots of a size, which are capable of accommodating private water supply and or sewage disposal systems. Development in these areas shall have the approval of the Government Service Centre for on-site well and septic systems.” [ 34 ] The appellants say that they have approval for a septic system and an artesian well. It was brought to their attention by the court that

Article 2.2.3 of the Municipal Plan also states that “Development may be permitted only on sites which are directly accessible to a public street.” Did the Board err or exceed its jurisdiction? [ 35 ] The correspondence between the Town Council and the Government of Newfoundland and Labrador which was before the Board confirm that the part of the “nameless” service road is within the highway reservation owned by the province; that the Department of Transportation has not approved a driveway access off the service road which is within the highway reservation to the Bradbury property; and that permission was granted from the Provincial Government to continue to allow the Town to use the service road, including part of the highway road reservation on a temporary basis, until a more permanent solution is found. [ 36 ] The Board correctly determined that the service road or part of it is owned and controlled by the Provincial Government.

Documents provided to the Board demonstrated that the Provincial Government will not grant permission to the Bradbury’s to access the service road for the purpose of accessing their land. [ 37 ] The Town has no authority to grant access off a road reservation of a provincial highway. The fact that the Town, over many years, did some snow clearing, grading and kept the road open as either a shortcut, or a turning point for some town equipment does not establish the right to grant access off a provincial highway.

Only the provincial government could do that and they have not. [ 38 ] Once this whole issue arose, the Town and the Provincial Government explored a variety of options to find solutions to deal with the Bradbury application. The correspondence between the two levels of government which was before the Board brought into sharp focus, perhaps for the first time, what had been a rather murky situation.

The Town then sought legal advice regarding its possible liability for carrying out any work for the purpose of promoting vehicular traffic over this road, not owned by the town, particularly when it could be considered a trespass by the Town. The Town also noted that it had no authority to expropriate the land. The Town erected a sign to advise persons that this road was not a proper access.

The shortcut to the highway was effectively stopped and residents then had to travel down their own streets and out onto a regular town street and then make their way to appropriately access the highway. [ 39 ] The Bradburys submitted, and the Board rejected, that the past practice of the Town, required that the Town should continue its practice and grant them their permit because their lot borders on this service road running parallel to the highway. [ 40 ] There is no statutory obligation or duty on the town to construct roads, or to construct roads for a particular purpose, including for the development of land that may border on them.

The costs of development of roads and services required for the development of land is placed on the proposed developer by the regulations. [ 41 ] The Bradburys perhaps could or should have determined in advance if their proposal for development would be approved and/or what, if any conditions might be required to be met before a permit would be issued.

They did not. [ 42 ] In its decision of October 8, 2009 the Board upheld “council’s authority to reject development in areas that it considers premature and deficient of infrastructure and services in situations where the development standards are not met.” [ 43 ] In the reconsidered decision of June 22, 2011, the second Board also decided that Council’s refusal was on the basis that “in the opinion of the Authority, the site lacks adequate road access.” [ 44 ] The Board, in my view, did not err in upholding the Town's

interpretation of its Municipal Plan and development regulations. In this circumstance, the Town operated within and made a decision consistent with its Plan and Regulations. The Board correctly interpreted the Town's authority to deny development on a lot that in the town's opinion lacked adequate road access and services. [ 45 ] In Paradise (Town) v. Newfoundland and Labrador Eastern Regional Appeal Board , in a case involving an appeal by the Town of the Board's overruling of a discretionary decision of the Town of Paradise to refuse to issue a development permit, Dunn, J. stated at paragraph 27: 27.

ENRAB, like this Court, in its review of the appellant’s decision was required to adopt the proper approach to the

interpretation of the Town of Paradise Development Regulations, that is, one of a broad and purposive nature. This modern approach recognizes deference is to be shown to decisions of municipal authorities, and this would be particularly so when the authority is exercising its discretionary powers. As stated by Gushue, J. A., a review Board may only overturn the actions of a municipal authority acting in the exercise of its discretionary power where it is demonstrated that without question the municipal authority has acted in excess of those powers. (emphasis original)

[ 46 ] As noted previously, no error of law or excess of jurisdiction have been identified which would justify this court in overturning the Board’s decision. In addition, the Board did not find any evidence of misconduct, bad faith or any improper motive or illegality in the actions of the Town Council.

I have reviewed all the material, included in the record and there is nothing in the record or transcript of the proceedings that would suggest any such activity. [ 47 ] It is my conclusion that the Board correctly decided that the refusal of the Town Council to issue the development permit due to the lack of road access and services was appropriately within the authority of the Town Council pursuant to its Municipal Plan and Development Regulations. [ 48 ] The appeal is dismissed.

The second respondent is awarded party and party costs based on Column 1 of Rule 55 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D . _____________________________ Deborah E. Fry Justice