Iris Petten Appellant/ Respondent by cross-appeal And: City of St. John's First Respondent And: Robert Mellin Second Respondent/ appellant by cross-appeal - v. -, 2021 NLSC 87

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Petten v. St. John's (City) , 2021 NLSC 87 Date : June 14, 2021 Docket : 202001G5071 Between: Iris Petten Appellant/ Respondent by cross-appeal And: City of St. John's First Respondent And: Robert Mellin Second Respondent/ appellant by cross-appeal - and - Docket : 202001G5072 Between: Iris Petten Appellant/ respondent by cross-appeal And: City of St. John's First Respondent And: Robert Mellin Second Respondent/ appellant by cross-appeal

Before: Justice Vikas Khaladkar On Appeal From: Decisions of the St. John’s Local Board of Appeal, dated the 9th day of October, 2020 and 16th day of October, 2020. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 17, 2021

Summary: Petten sought to overturn two decisions of the Board. In its first decision the Board ruled that the appeal was brought outside the time limited for appeal. In the second decision the Board held that the decision appealed from related to a reduction in the height of the proposed building and the curing of a potential encroachment on an adjoining landowner’s property. The Board held that the City’s decision was proper under the circumstances. There were issues, in the first appeal, with respect to a breach of the rules of natural justice.

The Board ought to have granted Petten an adjournment because she had not received all of the documentation required to fully present her case and her counsel of choice was not available to argue the appeal. With respect to the second appeal, the Board made a finding of fact that the Revised Building Permit granted to Mellin was in accordance with the City’s building regulations. This Court has no jurisdiction to set aside the findings of fact of the Board. The first appeal is allowed and the matter remitted back to the Board to review its process. The second appeal is dismissed. Appearances: Peter A.

O'Flaherty, Q.C. Appearing on behalf of the Appellant/ Respondent by Cross-Appeal Linda S. Bishop, Q.C. Appearing on behalf of the First Respondent

G. John Samms Appearing on behalf of the Second Respondent/Appellant by Cross-Appeal Authorities Cited: CASES CONSIDERED: Housen v. Nikolaisen , 2002 SCC 33 ; Sun Life Assurance Co. of Canada v. St. John’s (City) , 2005 NLTD 189 STATUTES CONSIDERED: Urban and Rural Planning Act , 2000 , S.N.L. 2000, c. U-8 ; City of St. John’s Act , R.S.N.L. 1990, c. C-17 REGULATIONS CONSIDERED : St.

John’s Development Regulations , created under the authority of the Urban and Rural Planning Act, 2000 ; Development Regulations , N.L.R. 3/01 REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] The Appellant/Respondent by Cross-Appeal, Iris Petten, (hereinafter “Petten”) appealed to this Court from two decisions of the St. John’s Local Board of Appeal (hereinafter the “Board”).

The Board is the administrative tribunal that hears appeals regarding development decisions made by City Council or City Officials. appeal no. 1 to the board [ 2 ] The first appeal to the Board was filed on September 4, 2020. [ 3 ] Counsel who appeared on behalf of counsel for Petten objected to the matter proceeding because the First Respondent in the matter before this Court, City of St. John’s (hereinafter the “City”), had not provided all of the disclosure necessary to, in his estimation, properly prepare for the appeal.

Furthermore, he argued that since counsel for Petten was unable to be present on the date that the hearing was scheduled, the matter should have been adjourned. [ 4 ] Counsel for the Second Respondent/Appellant by Cross-Appeal in the matter before this Court, Developer, Robert Mellin (hereinafter “Mellin”), argued that the appeal was not brought within the time limited for appeals and, as such, the Board had no jurisdiction to hear the matter. [ 5 ] The Board heard the preliminary objections and invited counsel to submit any written materials they wished to put before the Board. [ 6 ] After considering the representations of Petten, the City and Mellin, the Board determined that it did not have jurisdiction to hear the September 4, 2020 appeal because the appeal was filed out of time. [ 7 ] The Board ruled that the only decisions that could be appealed to it pertaining to the construction of the proposed dwelling on September 4, 2020 consisted of the following: 1.

The Development Approval in the form of a Development Permit issued by the City on January 31, 2020; and 2. The issuance of a Building Permit by the City on February 4, 2020. [ 8 ] The Board ruled that

section 4.3.2(3) of St. John’s Development Regulations , created under the authority of the Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U-8 (“ URPA ”) provides that an appeal shall be submitted within fourteen (14) days of the decision appealed from. [ 9 ] The Board held that the notification of the issuance of the Development Approval and the Building Permit were referred to the St. John’s Municipal Council for the information of Council, and listed in the agenda of the Regular Meeting of Council held on February 10, 2020. The Board ruled that the period to file an appeal against this decision began on February 10, 2020. In the Board’s

estimation, the time for appealing the decision had long expired and, therefore, the Board had no jurisdiction to hear the matter. additional relevant facts [ 10 ] Mellin discovered that it would not be feasible to build a structure that was slab on grade due to the existing soil conditions. He had to revise his plan to install concrete piers with wooden posts attached for the substructure. This resulted in the height of his proposed building becoming three feet higher than originally anticipated.

As the building was being erected it became apparent that the height of the building would exceed the height of the guardrail atop the retaining wall on the rear side of the house. [ 11 ] The City issued a stop work order owing to the variation in plan. It was discovered that there was also an encroachment issue concerning a contiguous landowner, namely the St. John’s Port Authority, which needed correction. Mellin reduced the height of his building by three feet and attended to the encroachment issues. The stop work order was removed and a Revised Building Permit was issued by the City on September 14, 2020.

The changes approved in the Revised Building Permit reduced the size of the structure in height and footprint. appeal no. 2 to the board [ 12 ] Petten filed the second appeal against the City’s decision on September 29, 2020. A hearing date was set by the Board for October 14, 2020.

Petten did this before receiving the Board’s decision in relation to the first appeal. [ 13 ] The grounds of the second appeal consisted of Petten’s position that a Revised Building Permit issued by the City on September 14, 2020 invalidly approved of the development of a replacement house which, Petten claimed, was clearly improperly built outside the footprint of the original house and impeded her view, thereby exceeding the parameters allowed in the St.

John’s Development Regulations . [ 14 ] Petten argued before the Board that the City’s 1994 “Footprint and Height Control Overlay for the Battery Development Area” governed, and allowed new replacement housing only so long as it is no bigger than the existing, on the same footprint and conformed to the City’s guidelines. [ 15 ] Petten argued that any non-conforming aspect of such a development would require the developer to produce a Land Use Assessment Report (“LUAR”).

She argued that affected property owners/residents would then have to be given an opportunity to review and comment on the LUAR. [ 16 ] Petten said: The Revised Building Permit was invalidly issued because it approves the development of a house built outside the southern boundary of the footprint of the original house which extends well above the high concrete retaining wall to the north (Battery Road) and obstructs the public view plane from Battery Road, without the residents of the area and the community having the opportunity to review and comment upon the development as required by s. 7.28 of the St.

John’s Development Regulations . [ 17 ] Petten’s objection to the replacement structure concerns the placement of the new house on a footprint different from the original house and degradation of the view plane as a result of a two-story structure replacing a one-story structure. [ 18 ] The Board held that the only changes to the construction of the dwelling from the original Building Permit issued by the City on February 4, 2020 by the Revised Building Permit of September 14, 2020, consisted of the City’s approval of a lowering of the height of the dwelling and approval for a change in building plans to ensure that the dwelling does not encroach on lands that may be owned by the St.

John’s Port Authority. [ 19 ] The Board found that the revised building plans met all applicable requirements of the St. John’s Development Regulations and, therefore, that the Revised Building Permit was appropriately issued. In the result the Board dismissed Petten’s second appeal. issues Did the Board deny Petten procedural fairness by failing to ensure that she had a copy of the application being appealed? Did the Board deny Petten procedural fairness by refusing to grant an adjournment to enable her counsel to be present? What is the impact of

section 7.28 and Appendix “A” of the St. John’s Development Regulations ? Did the Board err in law or jurisdiction in rendering its decisions? analysis Rights of Appeal [ 20 ]

Section 4.3.2 of the St. John’s Development Regulations sets out the various parameters concerning appeals:

(2) Any person may appeal to the Appeal Board from a decision of Council or an Officer of Council made under these Regulations.

(3) An appeal shall be submitted on the designated application form to the St. John’s Local Board of Appeal within fourteen (14) days of the decision appealed from, stating the circumstances and grounds for the appeal, together with fee as determined by Council, which fee shall be no greater than the appeal fee established for appeals to the Regional Appeals Board by Order of the Minister

of Municipal and Provincial Affairs. The appeal will not be registered unless the required appeal fee is paid.

(4) The Appeal Board shall meet to hear an appeal within thirty (30) calendar days after the appeal has been filed with the Secretary of the Appeal Board and within fourteen (14) calendar days of hearing the appeal shall make its decision known in writing to both the Council and the appellant. [ 21 ]

Section 4.3.6 of the St. John’s Development Regulations provides:

(1) A decision of the Appeal Board may be appealed to the Trial Division of the Supreme Court of Newfoundland. [ 22 ] In addition,

section 46 of the URPA provides as follows:

(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. Did the Board deny Petten procedural fairness by failing to ensure that she had a copy of the application being appealed?

Did the Board deny Petten procedural fairness by refusing to grant an adjournment to enable her counsel to be present? [ 23 ] It is a long established and fundamental tenet of our common law that a fair hearing requires that each party to a case have reasonable and adequate notice of the case that s/he is to face and be offered a fair opportunity to present and state her/his case. [ 24 ] Counsel for Petten complained to the Board that he was not in possession of all the documentation necessary to properly put the case forward and, in any event, that he was merely standing in for counsel who had been retained to represent Petten.

He requested that the matter be adjourned so that the City could provide the required information and, as well, so that Petten’s counsel could represent her. [ 25 ] The Board did not grant an adjournment, but invited counsel to make written submissions (which they provided) and, thereafter, dismissed the appeal because, in its view, the time for appeal had long since passed. [ 26 ]

Section 4.3.2 of the St. John’s Development Regulations does not stipulate that the Board must hear the appeal and provide a decision within 45 days of the appeal. Rather, the process must begin within 30 days of an appeal being filed. The circumstances of the case, including its complexity, may require that the Board take longer than 30 days to hear the appeal.

That is permissible so long as the process is begun within 30 days of the appeal being filed and ends no more than 15 days after the appeal hearing is concluded. [ 27 ] The Board ought to have granted counsel’s request for an adjournment pending receipt of information from the City and in order to afford an opportunity for Petten’s counsel to be present.

Its failure to do so resulted in a denial of natural justice. [ 28 ] Pursuant to section 46(4) of the URPA , I am required to either confirm or vacate the Order of the Board and, if I elect to vacate the Order, I am required to provide an opinion as to the error in law or jurisdiction so that the Board may deal with the matter in accordance with that opinion. [ 29 ] Inasmuch as there was a denial of natural justice because the Board refused to provide Petten with an adjournment in order that they could be apprised of the City’s documentation and be represented by their counsel of choice, I have no option but to vacate the Order of the Board with respect to Appeal No. 1.

The Board lost jurisdiction by its failure to grant a request for an adjournment that was made for legitimate reasons. What is the impact of

section 7.28 and Appendix “A” of the St. John’s Development Regulations ? The Public’s Right To Consult [ 30 ]

Section 7.28 of the St. John’s Development Regulations requires the preparation of a LUAR under certain circumstances. The requirement to produce an LUAR is triggered when a proposed development within The Battery Development Area exceeds the parameters of Appendix A.

Section 7.28 states, in part, as follows: … Where an application is made to develop a property which is located within the Battery Development Area in which the proposed

development exceeds the parameters of Appendix A – “Footprint and Height Control Overlay for the Battery Development Area”, Council may approve the development, provided that the applicant undertakes a Land Use Assessment Report on the proposed development at their expense, under terms of reference approved by Council, and provided that property owners/residents as determined by Council or an Officer of Council are given an opportunity to review and comment on the Land Use Assessment Report before it is referred to Council for consideration of approval and, provided the Land Use Assessment Report demonstrates to Council’s satisfaction that the proposed development is acceptable. (2009-07-24) [ 31 ] As can be seen, adjacent owners and residents are given an opportunity to review and comment on an LUAR only where the proposed development exceeds footprint and height control overlay restrictions for the area. [ 32 ] Within Appendix A, at

section 10.8.1 thereof, are the permitted uses for residential developments and at subparagraph (

e) the permitted use that is listed is “single detached dwelling”. [ 33 ] There is no height restriction within Appendix A – other than that a replacement building may not exceed two stories in height on the uphill side of a lot and three stories in height on the downhill side.

The height of a story is nowhere defined – except that a peaked roof counts as a story. [ 34 ] According to Appendix A, expansion of the footprint of the dwelling, at 10 Top Battery Road, is permitted to the left of the building lot as viewed from the road. [ 35 ] In 2019 Mellin applied to replace an existing one-story single detached dwelling with a two-story single detached dwelling. Under the Development Regulations this was a permitted, non-conforming use. It did not require the approval of City Council – City Officials were empowered to provide the Development Approval and issue a Building Permit.

In order to give the Development Approval and issue the Building Permit, City Officials would have had to satisfy themselves that the building did not exceed two stories in height and that it was located on the footprint of the existing building or, if it was expanded, that the expansion was to the left as viewed from the road. [ 36 ] Had the plans presented to the City by the Developer exceeded what was allowed in Appendix A, City staff would have required the Developer to prepare a LUAR. Since this was not required, the proposed development can be taken to have been within the Appendix A guidelines.

Only where a LUAR is required is there a necessity to involve adjacent landowners and City Council in the decision-making process. Right To A View [ 37 ] The “right to a view” is not protected at common law.

Section 388 of the City of St. John’s Act , R.S.N.L. 1990, c. C-17 provides:

(1) A person shall not be restricted from erecting a building to a height by rights acquired or claimed by an owner of an adjacent building in respect to a light, window, or opening for air or light in the adjacent building. [ 38 ] The right to a view is not protected by the provisions of

section 388 of the City of St. John’s Act . [ 39 ] The provincial legislation, the URPA establishes the development regime for the City of St. John’s. In the event of a conflict between URPA and the City of St. John’s Act , the former prevails.

The URPA does not provide for the protection of public or private views. [ 40 ] As noted in paragraph [14] above, Petten’s principal objection to the Mellin’s development was that it exceeded the footprint of the original house and “extends well above the high concrete retaining wall to the north (Battery Road) and obstructs the public view plane from Battery Road”. [ 41 ] In the first instance Mellin had applied, on April 18, 2019, to build a two-story structure replacing what then existed at No. 10 Top Battery Road. In October, 2019 he changed his mind and revised the plan to build a bungalow.

However, in 2020 he reverted to his original plan of building a two-story structure. The City had approved Mellin’s original plan for a two-story structure in January, 2020 and notice of this Development Approval was placed on City Council’s agenda as aforesaid for its February 10, 2020 meeting. [ 42 ] The City’s administrative decisions in relation to this development prior to September 4, 2020 were taken on January 31 and February 4, 2020. These consisted of the Development Approval and the issuance of a Building Permit. The matter was placed on City Council’s agenda for its February 10, 2020 meeting.

No further decisions were taken by the City’s administrative staff in relation to the development until September 14, 2020. Standards Of Review [ 43 ] Appeals to the Supreme Court of Newfoundland and Labrador are as of right. Accordingly, as set out in Housen v. Nikolaisen , 2002 SCC 33 , the standard of review is correctness in relation to questions of law and/or jurisdiction. Appeals are not allowed by the legislation in respect of matters that are questions of fact or mixed law and fact.

Did the Board err in law or jurisdiction in rendering its decisions? [ 44 ] Development in the City is regulated by the URPA and the St. John’s Development Regulations made pursuant to that Act . Development may only take place in accordance with the municipal plan.

[ 45 ] Municipalities are allowed, by the Development Regulations , to characterize the use to which a property is sought to be put as either being “discretionary”, “permitted” or “prohibited”. [ 46 ] Discretionary uses require the municipality to exercise its judgment as to whether or not a particular use will be allowed. On the other hand, there is no discretion in the case of permitted or prohibited uses. In the case of permitted uses, provided that the use is listed within the classes of permitted uses, the approval of that use is automatic.

In the case of prohibited uses, if the use is not listed within the permitted use classes, then the use is automatically disallowed. [ 47 ] The City’s ability to delineate such uses is conferred by section 4(2) of the Development Regulations under URPA : An authority may, in its discretion, determine the uses that may or may not be developed in a use zone and those uses shall be listed in the authority’s regulations as discretionary, permitted or prohibited uses for that area. [ 48 ] In Sun Life Assurance Co. of Canada v. St.

John’s (City), 2005 NLTD 189 , Orsborn, J. stated at paragraph 40: Looking at these regulatory provisions as a whole – in particular the stipulated levels of approval and the delineation of permitted and discretionary uses – my view is that the regulatory regime contemplates that the discretion of Council would be reserved for those decisions left specifically to Council and that decisions left to officials would not involve discretion but rather assessment of the particular application against specific regulatory requirements.

To conclude otherwise would, it seems to me, render pointless the distinction between permitted and discretionary uses and make ineffective and uncertain the detailed regime which bestows upon officials of the City the authority to issue building and other permits. [ 49 ] Certainty is a characteristic that is greatly coveted by citizens – be they residents or developers. It is helpful for everyone to know the rules, and have a legitimate expectation that outcomes will be in accordance with those rules.

The City’s Municipal Plan and Development Regulations are binding upon the municipality and those persons undertaking development in the area that will be governed by the plan and regulations. [ 50 ] In relation to permitted and prohibited uses, it is efficient for the municipality to allow its staff to approve or deny applications for building and other permits based upon the criteria contained in the development plan and regulations. [ 51 ] Development applications that wholly comply with the provisions of the Development Regulations , and which do not require the exercise of discretion by Council, may be approved by staff.

Once approved, notice of such approvals appears in the Agenda of Council’s public meetings. [ 52 ] In the case before me Mellin’s proposal to demolish and rebuild a residence at 10 Top Battery Road was approved by staff on January 31 and February 4, 2020. [ 53 ] Counsel argued, on behalf of Petten, that the approval was for a one-story structure. The City took the position that the approval was for a two-story structure. Frankly, it doesn’t matter whether it was for a one-story structure or a two-story structure.

Either structure is a permitted, non-conforming use. [ 54 ] Notice of the approval was published in Council’s Public Meeting agenda on February 10, 2020 for information purposes only. That date started the clock for the first appeal period in this matter. [ 55 ] The Board erred in not providing Petten with the requested adjournment with a view to preparing adequately for the hearing and being represented by counsel of choice. [ 56 ] Mellin faced some difficulties, during construction, owing to the condition of the soil on site.

He was forced to modify his building strategy – resulting in building that was, perhaps, a couple of feet taller than he had earlier anticipated. The City imposed a stop work order against Mellin because of the additional height of the structure and because of a potential problem with contiguous property belonging to the St. John’s Port Authority. Mellin revised his plan by decreasing the height of the building and attended to the encroachment problem with the St. John’s Port Authority.

The stop work order was lifted and a Revised Building Permit issued on September 14, 2020. [ 57 ] In the second appeal, Petten argued that the redevelopment application submitted by Mellin did not conform to the mandatory building height and footprint size and, as such, were required to complete a LUAR. A LUAR would need to be submitted to Council for its consideration.

Petten’s position, before the Board, was that Council’s failure to require an LUAR deprived her of the ability to review and comment on the LUAR. [ 58 ] The Board held as follows: The responsibility of the Board of Appeal is to review the appeal by the Appellants against the decision made by the City of St. John’s on September 14, 2020 to issue a Revised Building Permit for the construction of a dwelling at 10 Top Battery Road.

The City representatives have advised the Board that the only changes to the construction of the dwelling from the original Building Permit issued by the City on February 4, 2020 by the revised Building Permit issued on September 14, 2020, are City approval for a lowering of the height of the dwelling and approval for a change in the building plans to ensure the dwelling does not encroach on land that may be owned by the St. John’s Port Authority. The City has advised the Board that the revised building plans have met all applicable requirements of the St.

John’s Development Regulations and thereby the revised building permit was appropriately issued. The Board of Appeal finds the decision of the City of St. John’s of September 14, 2020 to issue a Revised Building Permit for the construction of a dwelling at 10 Top Battery Road to be reasonable, acceptable and appropriate. Therefore, the Board denies the appeal.

[ 59 ] Petten’s second appeal could only be related to the City’s decision to grant a Revised Building Permit on September 14, 2020. The revision was for a reduced height for the structure and the curing of a potential encroachment on an adjacent landowner’s property.

Petten’s arguments before the Board were not constrained to those issues but, rather, related to whether or not the footprint of the building had shifted in disallowed directions and the height of the structure impeding Petten’s right to a view. [ 60 ] The Board accepted the evidence of City Officials that the revised building plans met all applicable requirements of the St. John’s Development Regulations . Whether or not the revised building plans met the St. John’s Development Regulations is a question of mixed fact and law. It is a determination that the Board is entitled to make.

This Court has no jurisdiction to set aside the Board’s finding of mixed fact and law - restricted, as it is, to questions of law and jurisdiction. [ 61 ] In relation to the second appeal, the subject matter of the appeal could only be the City’s decision to vary the Building Permit by reducing the height of the structure and attending to a potential encroachment upon lands owned by the St. John’s Port Authority.

Petten’s arguments concerning misplacement of the structure on the original building footprint, or the fact it was a two-story structure that impeded her view, are not germane to the revisions in the Building Permit. [ 62 ] To be clear, there is no right to a view – at common law, in the Provincial legislation or in the Development Regulations . In addition, there is no requirement that the developer file a LUAR since the proposed development was entirely within the parameters envisaged by the Development Regulations .

Community consultation is not required where the use, although it might be non-conforming, is permitted. [ 63 ] In the result the first appeal is allowed and the matter remitted back to the Board to review its process. The second appeal is dismissed. [ 64 ] Since the results are mixed, each party shall bear his/her/its own costs. _____________________________ Vikas Khaladkar Justice