Don Battcock Appellant And: Eastern Newfoundland Regional Appeal Board Respondent, 2021 NLSC 164

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Battcock v. Eastern Newfoundland Regional Appeal Board , 2021 NLSC 164 Date : December 8, 2021 Docket : 202101G2593 Between: Don Battcock Appellant And: Eastern Newfoundland Regional Appeal Board Respondent Before: Justice Daniel M. Boone Edited Transcript of Oral Reasons for Judgment On Appeal From: A Decision of Eastern Newfoundland Regional Appeal Board pursuant to Urban and Rural Planning Act, 2000 , SNL 2000, c. U-8, s. 42 , Appeal 15-006-067-008, dated April 1, 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 7, 2021 Date of Oral Judgment: December 7, 2021

Summary: The Court allowed an appeal from a decision of the Regional Appeal Board because the Board erred in law in finding that the Town lacked the authority to allow the construction of a fence over a portion of a municipal highway. Appearances: Don Battcock Appearing on his own behalf Chris Warren Appearing on his own behalf Authorities Cited: CASES CONSIDERED: French v. Newfoundland and Labrador (Eastern Newfoundland Regional Appeal Board) , 2019 NLCA 36 ; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 STATUTES CONSIDERED: Municipalities Act, 1999 , S.N.L. 1999 , c.

M-24 ; Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U- 8 REASONS FOR JUDGMENT Boone, J. : BACKGROUND [ 1 ] There is a historical public right of way within the Town of Holyrood known as Crawley’s Road. Crawley’s Road has never been developed to modern standards and much of it is presently overgrown. The Town has no intention to improve this roadway. Crawley’s Road intersects with the Conception Bay Highway (CBS Highway) that runs through the Town. [ 2 ] Crawley’s Road is a highway that it is not vested in the Crown, and therefore s. 163 of the Municipalities Act, 1999 , S.N.L. 1999 , c.

M-24 applies: 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. 163(2) Where a council is established to govern an area that was a townsite or other area owned by a corporation, all highways, sidewalks and bridges are considered to be public except those specifically retained by the corporation that are necessary to the corporation's operations. [ 3 ] Chris Warren owns property that is only accessible by way of Crawley’s Road. He has no plans to develop that property, but he may wish to do so in the future at which time he would need approval from the Town.

He presently intends to access his property for the purpose of cutting firewood. He applied to the Town for permission to improve Crawley’s Road by grubbing it off and placing Class 'A’ gravel to a width of six metres. [ 4 ] The Appellant’s residential property abuts Crawley’s Road on the west side of the intersection with the CBS Highway. The historical path of Crawley’s Road runs on an angle across the front of the Appellant’s property.

The Appellant wanted to square off his property by building a fence over a portion of Crawley’s Road, thereby taking into the practical (but not legal) boundaries of his property a very small triangular piece of what was historically part of Crawley’s Road. He applied to the Town for permission to build this fence, and the Town granted him a permit to do so. [ 5 ] Chris Warren appealed this decision to the Eastern Newfoundland Regional Appeal Board under s. 42 of the Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U-8 . Mr. Warren, the Town, and the Appellant all made submissions at the Appeal hearing.

THE DECISION UNDER APPEAL [ 6 ] The Regional Appeal Board allowed Mr. Warren’s appeal for the following reasons: The Board has determined that the Town did not have the authority to authorize the construction of a fence by an adjacent private property owner on a portion of a public right of way at Crawley’s Road.

The Board has not been able to ascertain that there is an applicable legislation which authorizes the Town to allow an adjacent private property owner to fence or encroach upon a portion of a public right of way while the right of way remains in the public domain, Further, the Town’s Application Form to construct a fence clearly states that the property owner is responsible for ensuring that all fences are erected within their legal property boundaries. [ 7 ] The Board ordered the decision of the Town to issue the permit to the Appellant be reversed and that the Appellant remove the fence. [ 8 ] The Appellant appeals to this Court under s. 46 of the Urban and Rural Planning Act, 2000 , which provides: 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. 46

(2) An appeal of a decision of a board under subsection (1) may be made on a question of law or jurisdiction. 46

(3) A board may be represented by counsel and heard on an appeal under this section. 46

(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. [ 9 ] The Appellant filed a Factum and made argument on the hearing of this Appeal. Neither the Town, the Board, nor Mr. Warren filed written submissions or presented argument at the hearing of this appeal. ISSUES 1. What is the standard of review of the decision of the Board? 2. Was the decision of the Board based on reversible error?

ANALYSIS Standard of Review [ 10 ] Pursuant to the Urban and Rural Planning Act, 2000 , s. 46(2) , an appeal can only be made to this Court on the ground that the Board erred in either jurisdiction or law. [ 11 ] The Appellant argues that the Board’s decision that the Town did not have the authority to issue him a permit to build his fence was a decision on a question of law. I agree. The Board determined that the Town did not have the legislative authority to issue a permit for the construction of a fence on a municipal highway. The Court of Appeal decided in French v.

Newfoundland and Labrador (Eastern Newfoundland Regional Appeal Board) , 2019 NLCA 36 , at para. 18 that the

interpretation of a statute or regulation is a question of law within the meaning of s. 46(2). [ 12 ] I note that the Board also made a finding that the Town permit application implicitly provided that a fence must be contained within the boundaries of property, but I do not read the Board decision as suggesting that the form of the Town permit application could control the question of the legislative authority of the Town.

Rather, I read this part of the Board decision as providing factual support for its decision on the legal question. [ 13 ] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , at para. 37 , held that in a statutory appeal from the decision of an administrative tribunal, the

interpretation of a statute is a question of law, which is reviewable on a standard of correctness. Applied to this case, in other words, if the Board was wrong in its

interpretation of the legislative authority of the Town to issue the fence permit, then its decision should be overturned. Application [ 14 ] The Municipalities Act, 1999, s. 163 says that the Town owns and can manage and control all highways not vested in the Crown. The legislative grant of ownership, management, and control would, based on the ordinary meaning of the words used and unless restricted by another

section of the Act , include the right to sell the land over which the roadway runs, grant an easement over it, or manage it through the powers of the Town over development within the municipality. There is nothing in the Act that specifically limits the authority of the Town to manage the roadway. [ 15 ] The Municipalities Act, 1999, s. 165(2) , is consistent with a reading of the Act as providing the Town with the authority to allow development on a public roadway: 165

(2) A person shall not break up the surface of a public highway, sidewalk or bridge or erect or place a structure or erection in, on or under them without the prior written approval of the town council and in accordance with conditions imposed by the council in its

approval. [ 16 ] A person is prohibited by s. 165(2) from erecting or placing a structure on a roadway without prior approval from the Town. Obviously, therefore, the legislative intent is that the Town has authority to allow the construction of a structure in a roadway. [ 17 ] This is not to say that in exercising its permit authority in respect of municipal highways the Town can ignore competing public or private interests in the management of the roadway. The balancing of such interests is the stuff of municipal politics. In this case, the Town attempted to account for the competing interests of Mr.

Warren and Mr. Battcock by seeking to broker an arrangement with the property owner to the east of the intersection between Crawley’s Road and the CBS Highway. Under that arrangement, the other landowner would have allowed for the relocation of the intersection sufficiently to the east to accommodate Mr. Battcock’s desire to square off the fence to his property and Mr.

Warren’s intent to improve Crawley’s Road to a width of six metres. [ 18 ] However, a requirement that the Town ought to consider competing interests in managing the municipal roadway does not detract from its legislative authority to manage the roadway, including the authority to allow development over part of the roadway. [ 19 ] The Board did not explain why it interpreted the Act as not including the authority to allow development over a portion of the roadway. As its

interpretation runs contrary to the ordinary meaning of the words used in the legislation, its

interpretation was in error. [ 20 ] Therefore, I find that the Board erred in law in its determination that the Town lacked the legislative authority to issue a permit to Mr. Battcock to construct a fence over part of the historical right of way. [ 21 ] The Board decision was based entirely on this erroneous finding, and therefore the decision should be overturned.

CONCLUSION and DISPOSITION [ 22 ] The Urban and Rural Planning Act, 2000, s. 46(4) sets out the powers of this Court on appeal: 46(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. [ 23 ] Therefore, it is ordered that the appeal is allowed, and the Board’s decision and order of April 1, 2021, is vacated in its entirety.

The matter is remitted back to the Board to be determined in accordance with the

interpretation of the Act as providing the Town the authority to approve Mr. Battcock’s construction of the fence over a portion of Crawley’s Road. [ 24 ] Ordinarily, Mr. Battcock would be entitled to his costs. However, the Town did not oppose Mr. Battcock’s appeal and supported his position before the Board. Mr. Warren did not oppose the Appeal. I make no order as to costs. _____________________________ Daniel M. Boone Justice