Rural Municipality of Big River, No. 555 Appellant v. Dana Pettigrew and Barbara, 2021 SKCA 30

Court of Appeal for Saskatchewan Docket: CACV3558 Citation: Big River (Rural Municipality) v Pettigrew , 2021 SKCA 30 Date: 2021-02-26 Between: Rural Municipality of Big River, No. 555 Appellant And Dana Pettigrew and Barbara Pettigrew Respondents Before: Jackson, Ottenbreit and Caldwell JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Caldwell On appeal from: 2019 SKMB 124 , Regina Appeal heard: December 7, 2020 Counsel: Christopher Boychuk, Q.C., for the Appellant Dana Pettigrew and Barbara Pettigrew on their own behalf Jackson J.A. I. Introduction [ 1 ] This is an appeal from a decision of the Planning Appeals Committee of the Saskatchewan Municipal Board [Committee]: Pettigrew v Big River (Rural Municipality) , 2019 SKMB 124 [ Committee Decision ].

Among other orders, the Committee directed the Rural Municipality of Big River No. 555 [RM] to issue a development permit to Dana and Barbara Pettigrew to allow them to build a detached garage on land they own at Michel’s Beach.

The RM appeals to this Court on the basis that the Committee erred by finding that the Pettigrews’ proposed garage complies with the Rural Municipality of Big River No. 555, bylaw No 1/A/16, Zoning Bylaw (March 2016) [ Bylaw ], which governs development at Michel’s Beach. [ 2 ] Because of the possibility of flooding at Michel’s Beach, the RM requires that all new structures be built at, or above, a safe building elevation [SBE] of 495.5 metres above sea level.

In addition to fixing the SBE at that level, the RM has established a two-step process to obtain a development permit for all new buildings, including garages. [ 3 ] The first step of the process requires that a potential builder obtain a foundation development permit. Once the foundation has been built, the second step requires the builder to apply for a second development permit before construction continues [above-foundation development permit].

The application for the above-foundation development permit must include a Saskatchewan land surveyor’s report indicating that the foundation, as constructed, meets the required SBE [SBE Report]. [ 4 ] In this case, the Pettigrews applied for and received a foundation development permit for the garage. Both the application and the permit referred to the SBE requirement. Nonetheless, the Pettigrews decided to comply with the requirement by following what they believed would be an appropriate alternative method to achieve the SBE.

This alternative method is called wet flood proofing , which is intended to measure compliance with the SBE from the height of concrete walls as opposed to foundation level. [ 5 ] After completing their foundation, the Pettigrews proceeded to the second step. They engaged Mr. Conrad Swenson, a Saskatchewan land surveyor, to provide an SBE Report. However, Mr. Swenson’s report showed that the height of the garage’s foundation did not meet the SBE requirement. Mr. Swenson prepared and filed his SBE Report advising the RM of his opinion. [ 6 ] Based on Mr.

Swenson’s SBE Report, the RM advised the Pettigrews that their application for an above-foundation development permit would be refused. The Pettigrews commenced building their garage anyway. The RM issued orders directing the Pettigrews to cease construction [Stop-Work Order] and to remove all above-foundation construction and to flood proof the foundation to the SBE [Enforcement Order]. The Pettigrews complied with the Stop-Work Order and ceased construction. [ 7 ] The Pettigrews then appealed to the RM Development Appeals Board [RM Board].

In their appeal, the Pettigrews asked the RM Board for a number of remedies including the retraction of the Stop-Work Order and the Enforcement Order and for the approval of a building permit. The Pettigrews submitted to the RM Board that the foundation of a non-inhabitable structure, such as a garage, need not be built to the SBE of 495.5 m above sea level. They said the definition of flood proofing, contained in the legal framework, permitted wet flood proofing through the use of proper materials, including concrete walls, as an alternative to attaining the SBE of 495.5 m above sea level.

The RM Board did not accept this

interpretation. [ 8 ] The Pettigrews also asked the RM Board for a variance that would allow them to wet flood proof in their circumstances only. They advised the RM Board that, if they are required to build their garage according to the SBE Report, it will be significantly higher than their home and the gradient to it will be steep. The RM Board held that it was not appropriate to grant the Pettigrews a variance from the strict application of the SBE.

In the result, the RM Board dismissed the appeal: Pettigrew v Big River (Rural Municipality) (15 August 2019) Big River, Appeal 01/2019 (Big River Development Appeals Board) [ RM Board Decision ]. [ 9 ] The Pettigrews appealed the RM Board Decision to the Committee. The Committee allowed the appeal, vacated the

Enforcement Order, and ordered the RM to issue an above-foundation development permit, as long as the Pettigrews’ application for the permit otherwise conformed to the Bylaw . On the core issue of how non-inhabitable buildings can be flood proofed, the Committee accepted the Pettigrews’ submission that wet flood proofing should be allowed as a means of attaining the SBE.

In the alternative, the Committee was prepared to grant the Pettigrews a variance. [ 10 ] The RM applied for and received leave to appeal against the Committee Decision to this Court under s. 33.1 of The Municipal Board Act , SS 1988-89, c M-23.2 : Big River (Rural Municipality) v Pettigrew (16 March 2020) Regina, CACV3558 (Sask CA) [ Chambers Fiat ]. [ 11 ] As part of their response to the RM’s appeal, the Pettigrews asked this Court to consider additional evidence that had not been considered by either the RM Board or the Committee [fresh evidence]. They submit the fresh evidence shows that Mr.

Swenson erred when he determined that the foundation of the garage is below the SBE. This is actually fresh evidence that is in support of a new argument that had not been made to the RM Board. It had been made to the Committee, but that body rejected it. The RM opposed the admission of this evidence on the footings that it does not meet the criteria for the admission of fresh evidence, it raises a new issue and it is not directed to any of the questions of law for which leave had been granted. [ 12 ] For the reasons that follow, I have concluded that the fresh evidence should not be admitted.

On the questions of law stated in the Chambers Fiat , I have found that the Committee erred. In the result, I have also concluded that the Committee Decision must be set aside, which means that the Board Decision stands. II. Legal Framework [ 13 ] A complex framework of Acts, regulations, bylaws and government and municipal approvals govern this appeal. The principal parts of the framework, as they apply to development on flood-prone land, are listed in sections A to E of this part.

The relevant provisions of The Planning and Development Act, 2007 , SS 2007, c P-13.2 , pertaining to some aspects of the authority of the RM Board and the Committee are contained in

section F. A. The Planning and Development Act , 2007 : Development provisions Development permit required 62

(1) If a zoning bylaw is in effect and a development permit is required, no person shall undertake a development or commence a use unless the person obtains a development permit . … Enforcement 242

(4) If, after inspection, the development officer determines that the development or form of development contravenes any provision of this Act, any regulations, any bylaw or any order made pursuant to this Act, the development officer may issue a written order to the owner , operator or occupant of the land, building or premises on or in which the development or form of development is located. (Emphasis added) B. The Statements of Provincial Interest Regulations , RRS c P-13.2 Reg 3 [ Regulations ], passed pursuant to The Planning and Development Act, 2007 5.

IMPLEMENTATION AND TRANSITIONAL … 5.6 Development permit decisions must be consistent with the Statements of Provincial Interest . 6. STATEMENTS OF PROVINCIAL INTEREST … 6.7 Public Safety STATEMENT OF INTEREST The province has an interest in ensuring the safety and security of individuals, communities and property from natural and human-induced threats. Planning Documents and Decisions To assist in meeting the province’s public safety interests, planning documents and decisions shall , insofar as is practical : 1. Identify potential hazard lands and address their management; 2.

Limit development on hazard lands to minimize the risk to public or private infrastructure;

3. Prohibit the development of new buildings and additions to buildings in the floodway of the 1:500 year flood elevation of any watercourse or water body; 4. Require flood-proofing of new buildings and additions to buildings to an elevation 0.5 metres above the 1:500 year flood elevation of any watercourse or water body in the flood fringe … . … 7.

GLOSSARY OF TERMS “flood fringe” means the portion of the flood plain inundated by the 1:500 year flood that is not floodway. “flood plain” means the area inundated by water from a watercourse or water body during a 1:500 year flood and is made up of the floodway and the flood fringe. “flood proofed” means a measure, or combination of structural and non-structural measures, incorporated into the design of a structure that reduces or eliminates the risk of flood damage to a defined elevation . “floodway” means the portion of the flood plain adjoining the channel where the waters in the 1:500 year flood are projected to: (

a) meet or exceed a depth of one metre; or (

b) meet or exceed a velocity of one metre per second; “ hazard land ” means land that is contaminated, unstable, prone to flooding or otherwise unsuited for development or occupation because of its inherent danger to public health, safety or property. (Emphasis added) C.

The Certificate of Approval of R561-09S issued for Stone Ridge Subdivision by the Community Planning Branch of the Saskatchewan Ministry of Government Relations Part of the land being subdivided may be subject flooding; therefore, to minimize future potential damage, new development on the land is subject to the following directives in conjunction with the issuance of development permits by the Rural Municipality of Big River, No. 555: 1.

All new permanent development is to be flood proofed up to an estimated Safe Building Elevation (SBE) 495.0 meters above sea level as may be determined by a Saskatchewan Land Surveyor ; 2. Subject to site conditions, all development is to be set back from the water to allow for future shore line erosion and for ice that may be pushed up by wave or wind action; 3. All foundations and utilities located below the SBE are to be constructed to withstand flooding and floating ice, and shall not have any openings which might allow flood water to enter . (Emphasis added) D. The RM’s Bylaw 2

Interpretation … Estimated Peak Water Level (E.P.W.L.) : the calculated water level used to determine the flood hazard area. It is based on the 1:500 year peak flow for rivers, and the higher of the 1:500 year peak calm level or the 1:100 year peak calm level with a 1:5 year wind from the most critical direction for most lakes. … Flood proofing : techniques or measures taken to permanently protect a structure or development from flood damage.

These can include measures such as elevating building (eg. building on fill or piers), constructing dykes, creating upstream storage, diversions, and channelization. … Safe Building Elevation (S.B.E.) : the level defined by The Ministry of Municipal Affairs at time of subdivision and by municipal bylaw to which flood-proofing must be undertaken for developments in the flood hazard area. The S.B.E. is calculated as the E.P.W.L. plus a freeboard value. The freeboard allows for uncertainties in the calculations, and for other possible hazards such as ice shove, ice jams, and erosion.

The Saskatchewan Watershed Authority usually recommends a freeboard of 0.5 m for most situations. For dykes used as flood- proofing, a freeboard of 0.6 m is usually recommended. In areas with high uncertainty in the hydrology or hydraulic response of the lake or river, a freeboard of up to 1.0 m may be recommended.

… 3.2 APPLICATION FOR DEVELOPMENT PERMIT 3.2.1 No person shall undertake a development or commence a use unless a Development Permit has first been obtained , except as provided in

Section 3.3. A Development Permit cannot be issued in contravention of any of the provisions of this Bylaw subject to Sections 213 to 227 of The Act . … 3.5 APPLICATION REQUIREMENTS 3.5.1 Applications for a development permit and applications for a discretionary use, with the exception of applications for a home based business, shall be accompanied by the following : …

(4) A copy of a site plan, drawn to scale with appropriate dimensions, showing the following information: … (

e) confirmation from a Saskatchewan Land Surveyor that the bottom of the floor joists on the foundation are above the Safe Building Elevation, if the development site is located near flood or slump prone lands . … 4.2 DEVELOPMENT ON HAZARD LANDS 4.2.1 Where a proposed development of a building is to be located on land considered by Council to be potentially hazardous, Council may require the applicant to submit sufficient topographic information to determine if the development will be within any river or stream flood plain, along a canal, or other land that may be subject to flooding. 4.2.2 Council may require that before a permit may be issued, the applicant shall submit a report prepared by a professional competent to assess the suitability of the site for a development described in

Section 4.2.1 , and which in the opinion of Council, shows that the proposed site and development is suitable with respect to the following where relevant: (1) the potential for flooding up to the Safe Building Elevation, to be determined from specific site investigations, or where not involving any building, such lower elevation as may be suitable for the proposed use ; (2) the potential for slope instability; and/or (3) the required mitigation measures for construction on areas of high water tables, in slopes or on contaminated sites if any . (Underline emphasis added) E. The Official Community Plan [OCP] of the RM:

Schedule “A” to the Bylaw 3.2.2 Objectives and Policies Objective 3.2.2.1 Development on Potentially Hazardous Land To discourage development on potentially hazardous land and ensure that appropriate development standards are met when development is feasible . Policy (

a) Ensure the most recent information on potential flood hazard areas within the municipality as it relates to new subdivision applications and applications for development permits is used. Policy (

b) Development shall avoid land that is potentially hazardous due to flooding, erosion, slumping or slope instability. Policy (

c) Where subdivision or development is proposed for what Council considers may be hazard land, or on land within +/- 0.5 m of the Safe Building Elevation is established, the applicant shall submit a report, prepared by professionals certified to assess relevant factors … together with any required mitigation measures . Council may refuse to authorize development on hazard land or may permit development only in accordance with specified mitigation measures . These measures may be attached as a condition for development permit approval.

The costs associated with undertaking specified mitigation measures, and with providing the required documentation related to any specified mitigation measures will be borne by the applicant or proponent of the proposed development. … Policy (

f) As per the Statements of Provincial Interest , insofar as is practical, development of new buildings and additions to buildings to an elevation of 0.5 metres above the 1:500 year flood elevation of any watercourse or water body in the flood fringe shall be flood-proofed . (Emphasis added)

F. The Planning and Development Act, 2007 : Powers of the RM Board and the Committee Purposes of zoning bylaw 45 The purposes of a zoning bylaw are to control the use of land for providing for the amenity of the area within the council’s jurisdiction and for the health, safety and general welfare of the inhabitants of the municipality. … Right of appeal on zoning bylaw 219

(1) In addition to any other right of appeal provided by this or any other Act, a person affected may appeal to the board if there is: (

a) an alleged misapplication of a zoning bylaw in the issuance of a development permit; (

b) a refusal to issue a development permit because it would contravene the zoning bylaw; or (

c) an order issued pursuant to subsection 242(4). … Determining an appeal 221 In determining an appeal, the board hearing the appeal : (

a) is bound by any official community plan in effect; (

b) must ensure that its decisions conform to the uses of land, intensity of use and density of development in the zoning bylaw; (

c) must ensure that its decisions are consistent with any provincial land use policies and statements of provincial interest; and (

d) may , subject to clauses (

a) to (c), confirm, revoke or vary the approval, decision, any development standard or condition, or order imposed by the approving authority, the council or the development officer, as the case may be, or make or substitute any approval , decision or condition that it considers advisable if, in its opinion, the action would not : (

i) grant to the applicant a special privilege inconsistent with the restrictions on the neighbouring properties in the same zoning district; (ii) amount to a relaxation so as to defeat the intent of the zoning bylaw; or (iii) injuriously affect the neighbouring properties. … Appeal from decision of board 226

(1) The minister, the council, the appellant or any other person may, within 20 days after the date of receipt of a copy of the decision, appeal a decision of the board, by written notice, to the Saskatchewan Municipal Board, with a copy of the notice to the board. …

(3) In determining an appeal pursuant to this section, the Saskatchewan Municipal Board may: (

a) dismiss the appeal; or (

b) make any decision with respect to the appeal that the board could have made. … New evidence 227.1

(1) The Saskatchewan Municipal Board shall not allow new evidence to be called on appeal unless it is satisfied that: (

a) through no fault of the person seeking to call the new evidence, the supporting materials and written record of proceedings mentioned in clauses 227(2)(

b) and (

d) are incomplete, unclear or do not exist; (

b) the board has omitted, neglected or refused to hear or decide an appeal; or (

c) the person seeking to call the new evidence has established that relevant information has come to the person’s attention and that the information was not obtainable or discoverable by the person through the exercise of due diligence at the time of the board hearing.

(2) If the Saskatchewan Municipal Board allows new evidence to be called pursuant to subsection (1), it may use any power or authority vested in it pursuant to The Municipal Board Act to seek and obtain further information. (Emphasis added)

III. Setting the SBE at Michel’s Beach [ 14 ] Michel’s Beach is located on hazard lands, being land that is subject to flooding.

Section 4.2.2 of the Bylaw empowers the council of the RM to require that an applicant for a permit to submit “a report prepared by a professional competent to assess the suitability of the site … and which in the opinion of Council, shows that the proposed site and development is suitable with respect to … the potential for flooding up to the Safe Building Elevation, to be determined from specific site investigations”. [ 15 ] Before development began at Michel’s Beach, the administrator of the RM sought the advice of the Community Planning Branch, Saskatchewan Department of Government Relations, as to what the SBE should be.

In an email dated August 18, 2006, the Administrator was informed that, based on a 1998 Sask Water Report, “the latest safe building elevation for Michel’s Beach is 495.5 metres above sea level” [Community Planning Email]. The author of the Community Planning Email advised the RM as follows: Since the RM is aware that the land may still be flood prone, it may apply

section 4.1 of its zoning bylaw to the issuance of any development permits. That is, the latest safe building elevation for Michel’s beach is 495.5 metres above sea level based on the 1998 Sask Water report. Under

section 4.1(2) of the zoning bylaw the RM may issue … development permit[s] that are subject to the builder flood proofing his/her development up to the 1998 safe building elevation. [ 16 ] The RM fixed its SBE at 495.5 m above sea level based on the information provided to it in the Community Planning Email. IV. Factual Background [ 17 ] The following background facts are uncontroverted and are taken largely from the RM Board Decision . [ 18 ] On May 27, 2019, the RM’s development officer issued the Pettigrews a development permit for a “detached garage foundation only”. The development permit was subject to the provisions listed in

Schedule “A”, which was attached to the “Notice of Decision for a Development Permit, Michel’s Beach (Other Than Ivory Drive – Delaronde Lake)”.

Schedule “A” included the following statement: All new buildings, structures and improvements are to be located above, or flood proofed up to an estimated safe building elevation of 495.5 meters above sea level based on the 1998 Sask. Water Report for Michel’s Beach on Delaronde Lake. This must be determined by a Saskatchewan Land Surveyor prior to the permit being issued for building above the foundation. [ 19 ] On the same day, the RM also issued a building permit for “a detached garage foundation only”. [ 20 ] On June 17, 2019, the RM’s building official reported to the RM that Mr.

Pettigrew had told him he had “built his garage slab below the safe building elevation because his house was built lower and he didn’t want his garage to be way higher than the house and he was going to build concrete ‘curbs’, basically concrete mini-walls, that come up higher than the slab” ( RM Board Decision at para 10). [ 21 ] On June 18, 2019, the assistant administrator of the RM responded to the building official and provided him with a copy of

Schedule “A”, mentioned in paragraph [18] above, and indicated that the RM would still require a certificate in accordance with that schedule, i.e., an SBE Report. [ 22 ] On June 26, 2019, Mr. Swenson provided his SBE Report. He indicated the top of the concrete pad of the garage was 1.17 m below the SBE. The surveyor based his opinion on a land elevation benchmark that had been set by another land survey company, George, Nicholson, Franko & Associates. [ 23 ] On that same day, it became apparent that the Pettigrews had commenced building the garage.

As a consequence, an RM official sent an email to the Pettigrews. She enclosed s. 4.2 of the Bylaw and s. 3.2.2 of the RM’s OCP. She advised the Pettigrews that if they applied for the above-foundation development permit, she would have to refuse it. She also advised them they could request to appear at the next regular Council meeting, scheduled for July 8, 2019. [ 24 ] On July 8, 2019, the Council of the RM met to discuss the matter. The Pettigrews did not appear.

The Council passed the following resolution: That, Council acknowledge, unless voluntary compliance can be achieved, the development officer will issue an order to remedy to the lot owner of Lot 18A, Block 4, Plan 102080070 [the Pettigrews] as the surveyor’s affidavit dated June 25th, 2019, for the concrete pad is 494.33 meters, which does not meet the estimated safe building elevation for Michel’s Beach of 495.5 meters above sea level indicated on the development permit, dated May 27th, 2019. [ 25 ] On July 10, 2019, an RM building official issued the Stop-Work Order pursuant to s. 17 of The Uniform Building and Accessibility Standards Act , SS 1983-84, c U-1.2 , and the Enforcement Order under s. 242(4) of The Planning and Development Act, 2007 .

The Enforcement Order claimed the subject development contravened s. 62(1) and s. 243 of the Act because the foundation had not been constructed to the SBE indicated in

Schedule “A” and construction above the foundation had commenced without an above- foundation development permit being issued by the RM. The Enforcement Order directed the Pettigrews to remove all above-foundation construction and flood proof the foundation up to an estimated safe building elevation of 495.5 m above sea level in accordance with the foundation development permit. The Pettigrews acknowledged receipt of the Orders. [1] Work discontinued. [ 26 ] On July 11, 2019, Mr. Pettigrew delivered a letter to the RM, describing the method he had begun to use to flood proof his detached garage.

He asked that the RM approve this new method as an additional way of satisfying the Bylaw ’s flood-proofing requirements for structures like storage sheds and detached garages [July 11 Letter]. The substance of the July 11 Letter is as follows: Method proposed for FLOOD PROOFING to comply with the Zoning Bylaw for RM of Big River. The definition is:

FLOOD PROOFING: Techniques or measures taken to permanently protect a structure or development from flood damage. These can include measures such as elevating a building (eg. Building on fill or piers), constructing dykes, creating upstream storage, and channelization”. METHOD CHOSEN FOR DETACHED GARAGE BUILDING PERMIT SAFE ELEVATION OF 495.5 m: 1) Build the garage concrete pad to an elevation of 494.33 m.

This provides adequate drainage to the road at 493.7 m and the drainage ditch which is even lower. 2) Build Insulated Concrete Forms (ICF) on the pad to an elevation of 495.57 m so they are above safe height requirement of 495.5 m. This is a 4’ high wall of ICF blocks. 3) Build wood walls on top of the ICF walls above the elevation of 495.57 m. The wood walls would be 6’ height so that the total wall height is 10’ as requested on the building permit. 4) Use steel man door that is insulated with Styrofoam inside. 5) Use a steel garage door that is insulated with Styrofoam inside.

IF/WHEN flooding should occur then the above construction materials will survive flooding from outside or even inside the garage as the materials do not rot and will dry out once the flood period is over, with no damage to the construction materials below the 495.5 m elevation. All of these materials are drip dry. ADDITIONAL INFORMATION: ICF basement foundation walls are a common construction method for a water proof foundation wall below ground level. The Styrofoam material is a closed cell structure which does NOT permit water flow through it.

As the ICF forms are used for a permanent water proof barrier, then a short term exposure to flood waters inside and outside a garage will not cause any damage to the structural integrity of an ICF wall. Therefore, when the flood waters recede the garage interior and exterior will drip dry and sustain no permanent damage and are considered flood proofed. The Styrofoam material used in steel man doors, and also in steel garage doors, is also a closed cell structure which does NOT permit water flow through it.

Therefore, when the flood waters recede the doors will drip dry and sustain no permanent damage and are considered flood proofed.

PROPOSAL: It is proposed that the RM add the above construction method to satisfy the FLOOD PROOFING requirements “Techniques or measures taken to permanently protect a structure or development from flood damage” as an acceptable technique or measure for UNINHABITED structures such as storage sheds and detached garages for acceptance in the RM Bylaw s. (Underline emphasis added) [ 27 ] The Pettigrews also provided the RM with a report from “Prakash Consulting Ltd., Structural Engineers”, dated August 6, 2019 [Prakash Report].

The Prakash Report draws a distinction between habitable buildings and accessory buildings such as garages. It offers the opinion that, for habitable buildings, “the habitable area consisting of floor joist and mechanical and electrical systems must be located above the safe building elevation” to ensure these systems remain above flood waters.

However, the report goes on to say that for accessory buildings such as garages, flood design need only “ensure that the structure within the flood zone will not be impacted by the movement of water” and that the construction material is not subject to mould or rot if affected by water. In summarizing the literature on point, the Prakash Report stated as follows: When the construction of structural systems in these areas can be reinforced concrete and reinforced & fully grouted masonry these systems resist the hydraulic water pressures and are mould and rot resistant.

Materials such as wood, drywall, mechanical and electrical components are not permitted within the flood zone. [ 28 ] Referring specifically to the Pettigrews’ garage, the Prakash Report concluded: In our experience, the proposed design outlined for this garage meets the intent of flood design in that it is not a habitable building and the construction materials used within the flood zone are not flood susceptible . (Emphasis added) [ 29 ] As with the July 11 Letter, the Pettigrews obtained the Prakash Report in order to prove that wet flood proofing is an appropriate flood-proofing technique or measure.

The RM received the July 11 Letter and the Prakash Report but maintained its position that an above-foundation development permit could not be granted. [ 30 ] It should be noted as part of this review that, when the Pettigrews constructed their home in 2007, the development permit also provided “direction to flood proofing up to an estimated safe building elevation of 495.5 m above sea level based on the 1998 Saskatchewan Water Report for Michel’s Beach on Delaronde Lake”. V. RM Board Decision [ 31 ] In their appeal to the RM Board, the Pettigrews filed the July 11 Letter and the Prakash Report.

They submitted that they had not contravened the legal framework because they had chosen “an acceptable method of Wet Flood Proofing for uninhabited buildings” ( RM Board Decision at 11).

[ 32 ] The RM Board found this evidence to be irrelevant and did not consider it. In that regard, it wrote as follows (at 11): The following evidence was considered to be irrelevant and was not considered by the Board when making the decision: The information regarding “wet” and “dry” flood proofing was irrelevant to the decision as the RM of Big River, No. 555 Zoning Bylaw #1A/16 does not use these

definitions for flood proofing. The Development Appeals Board has recommended to the RM of Big River, No. 555 Council, resulting from the Development Appeals Board Meeting held August 15, 2019, to seek engineering recommendations on wet flood proofing for non-habitable buildings (accessory buildings) for the municipality. [ 33 ] After finding the facts reviewed in the preceding section, the RM Board stated these to be the issues (at 2–3): 1. Did the Development Officer err when she issued the order [Stop-Work Order]? 2. Does the development contravene the RM’s Zoning Bylaw No. 1A/16 ? 3.

Does allowing the appellants to continue the construction of the detached garage above foundation without permits in place and without flood proofing of the foundation to an estimated safe building elevation of 495.5 meters above sea level grant to the appellant a special privilege inconsistent with the restrictions on the neighbouring properties in the same zoning district? 4.

Does allowing the appellants to continue the construction of the detached garage above foundation without permits in place and without flood proofing of the foundation to an estimated safe building elevation of 495.5 meters above sea level amount to a relaxation so as to defeat the intent of the zoning bylaw? 5.

Does allowing the appellants to continue the construction of the detached garage above foundation without permits in place and without flood proofing of the foundation to an estimated safe building elevation of 495.5 meters above sea level injuriously affect the neighbouring properties? [ 34 ] The RM Board’s response to these issues may be summarized as follows: (

a) The development officer did not err by ordering the removal of all above-foundation construction or ordering that the foundation be flood proofed up to an estimated SBE of 495.5 m above sea level. (

b) The development contravenes the RM’s Bylaw in two ways. First, it contravenes s. 3.5.1(4)(

e) because the bottom of the floor joists on the foundation must be above the estimated SBE and a surveyor confirmed that this was not the case. Second, it contravenes s. 3.2.1 of the Bylaw because no above-foundation development permit was obtained for the construction above the foundation of the detached garage. (

c) No special order should be made under s. 221 (

d) of the Planning and Development Act, 2007 , because to do so would (

a) grant the Pettigrews a special privilege over neighbouring properties in the same zoning district, (

b) amount to a relaxation that would defeat the intent of the zoning bylaw, and (

c) negatively affect the neighbouring properties. [ 35 ] The Pettigrews appealed to the Committee under s. 226 of The Planning and Development Act, 2007 , and s. 17 of The Municipal Board Act . Both of these provisions permit appeals from the RM Board to the Committee.

Section 17 of The Municipal Board Act specifically confers upon the Committee the right to hear and determine appeals and other matters under The Planning and Development Act, 2007 . VI. Committee Decision [ 36 ] The Committee framed the issues as follows: [7] Did the Board make a mistake when it dismissed the appeal of the Order and the RM’s refusal of an above-foundation development permit and, in particular: (

a) Did the foundation of the garage contravene

Schedule A of the foundation development permit? (

b) Did the foundation contravene the requirements of the Bylaw ? (

c) If the foundation contravened the terms of the foundation development permit or the requirements of the Bylaw , should the Board have exercised its jurisdiction under subsection 221(

d) of the Act to grant a variance to the Bylaw ? [ 37 ] As part of their submissions to the Committee, the Pettigrews reiterated their position that the SBE could be achieved by wet flood proofing. The Pettigrews also filed fresh evidence questioning the SBE Report, suggesting that their home and their garage pad met, and perhaps exceeded, the safe building elevation of 495.5 m above sea level.

This fresh evidence will be described in detail later in these reasons as it forms part of the Pettigrews’ fresh evidence application in this Court. [ 38 ] As a preliminary matter, the Committee considered whether the fresh evidence should be admitted. They decided against admitting the evidence, saying, “We are not prepared to question the elevations provided in the SBE Report and our findings below are grounded in the elevations provided in the SBE Report” (at para 9).

However, the Committee accepted and gave effect to the Prakash Report regarding wet flood proofing. [ 39 ] In relation to the issues that the Committee had identified, they held as follows: (

a) the RM Board erred by finding that the foundation of the garage contravened

Schedule “A” of the foundation development permit because the definition of flood proofing in the Bylaw “is flexible and open-ended and does not exclude wet flood proofing” (at

para 17); (

b) the foundation did not contravene the Bylaw because it contains a definition of flood proofing that “does not rule out wetproofing for accessory buildings, which was described by the Prakash Report and was revealed in the evidence before the [RM] Board tobe an accepted practice elsewhere” (at para 21); and (

c) applying s. 221(

d) of the Planning and Development Act, 2007, the RM Board should have granted the Pettigrews a variance(at para 36). [40] The Committee allowed the appeal from the RM Board’s decision, directed that the Enforcement Order be vacated and orderedthe RM to issue “an above-foundation development permit, as long as the application otherwise conforms to the Bylaw” (at para 47). VII. Leave Questions [41] The RM applied in Court of Appeal Chambers for leave to appeal the Committee Decision pursuant to s. 33.1 of The MunicipalBoard Act, which governs such applications. [42] In the Chambers Fiat, leave to appeal was granted on the following grounds: (

a) That the Committee erred in law or exceeded its jurisdiction by conducting a hearing de novo rather than an appellate reviewof the decision of the RM Board.[2] (

b) That the Committee erred in law or exceeded its jurisdiction by failing to address the RM Board’s finding that the Pettigrewshad violated s. 62(1) of The Planning and Development Act, 2007, including by overlooking findings that the Pettigrews had not appliedfor or received an above-foundation development permit. (

c) That the Committee erred in law or exceeded its jurisdiction by ordering the RM to issue an above-foundation developmentpermit, thereby authorizing the development, without the Pettigrews having applied for such a permit, in breach of s. 62(1) of ThePlanning and Development Act, 2007, and the zoning bylaw. (

d) That the Committee erred in law or exceeded its jurisdiction by improperly interfering with the exercise of discretion by theRM Board to deny a variance under s. 221(

d) of The Planning and Development Act, 2007, and by overlooking factors relevant to theexercise of that discretion, including applicable provincial land use policies and statements of provincial interest in relation to floodproofing under The Statements of Provincial Interest Regulations, P-13.2 Reg 3. VIII. Standard of Review [43] The standard of review with respect to questions of law and jurisdiction stated for the Court under s. 33.1 of The MunicipalBoard Act is correctness: Gary L.

Redhead Holdings Ltd. v Swift Current (Rural Municipality), 2017 SKCA 47 at para 88, 415 DLR (4th)218. [44] This Court has not been asked a question of law respecting what standard the Committee should apply when it reviewsdecisions of a development appeals board. Nor did the parties argue that the Committee had not applied the proper standard of review, butquestion (

d) above assumes a certain standard of review. [45] In that regard, the RM submitted that the standard of review for the Committee to apply should be the same as for municipaltax assessment cases.

As to what that standard is, the RM relied on Regina (City) v Laing Property Corporation (1995), (SK CA), 128 Sask R 29 at para 29 (CA) [Laing], where Cameron J.A. wrote for the Court: [29] Having regard for all of this, we are of the view the legislation envisions in the main an appeal to the Committee to review thedecision of a board of revision for error, as alleged by the appellant, and if error be found, to do what the board of revision in the exerciseof its powers of correction and variation should have done, remembering that at bottom lies the personal judgment of the assessor.

Unlessthat judgment be founded on material error of fact, of law, or of assessment principles and practice as laid down in the Manual, it shouldnot be interfered with.

And even then, if the value ascribed to an improvement by an assessor should appear for whatever reason to bemore or less than its fair value, the assessed value should not be varied so long as it bears a fair and just proportion to the assessed value ofother improvements in the municipality. (For more contemporary statements of this principle, see City Centre Equities Inc. v Regina (City), 2018 SKCA 43 at para 99, 75 MPLR(5th) 179, or GFL Environmental Inc. v Edenwold (Rural Municipality), 2020 SKCA 89 at paras 57 and 97.) [46] To date, there have been few cases in this Court considering the standard of review for a planning and development committeeto apply to a development appeals board.

However, in Dolman v Royal West Equities Corp. (1990), (SK CA), 87 SaskR 277 (CA) [Dolman], this Court dismissed an appeal from the Committee, which had, in its turn, dismissed an appeal from the City ofSaskatoon’s Development Appeals Board. The Court could find no error of law in the Committee’s approach or conclusion or that it haderred in law or misconstrued or misapplied the statutory provision in question. [47] Having regard for Laing and Dolman, the standard of review that I will apply in relation to the Committee’s review of theBoard’s decision under s. 221(

d) is one that empowers the Committee to review for material error of fact, law or development principles.In doing so, it is understood that a failure to properly construe or apply a statutory or regulatory provision can amount to a material error oflaw as can the consideration of an irrelevant factor. Since, the question of the standard of review in relation to planning and developmentmatters has been raised as a specific question of law in an appeal pending in this Court (see E.Z. Automotive Ltd. v Regina (City), 2019SKCA 38, reviewing 2019 SKMB 20), and in light of the limited submissions in this appeal, I will make no further comments on the issue.

IX. Analysis A. Fresh evidence application 1. Nature of the evidence [48] The Pettigrews filed an application asking this Court to accept the following additional evidence: (

a) an affidavit sworn by George Ritchie, dated May 7, 2020; (

b) a freedom of information application filed on September 16, 2020, and the response to that application, which included asurvey plan showing a proposed subdivision of Delaronde Lake that was approved on March 27, 1984 [Plan]; (

c) information regarding Canadian Geodetic Vertical Datum of 2013 [CGVD2013], which replaced the Canadian GeodeticVertical Datum of 1928 [CGVD28]; and (

d) various documents discussing elevation discrepancies between CGVD28 and CGVD2013, with a further direction to a websitemanaged by Natural Resources Canada. [49] The first piece of evidence is an affidavit of Mr. Ritchie. Mr. Ritchie owns his own construction company, operating out of BigRiver, Saskatchewan. He built the Pettigrews’ home in 2007. In his affidavit, Mr. Ritchie sets out how he arrived at the SBE for thePettigrews’ home by using the road as a reference.

He states that it was understood at the time, and accepted by all members of the RMcouncil who were present at the construction site, that the road had an elevation of 495.61 m above sea level. Mr. Ritchie then built thePettigrews’ home to correspond with this level. According to his affidavit, the garage foundation, with its present construction, should beat the same level as the home. In other words, if the house is at or above 495.5 m above sea level then the garage should be too. [50] Mr. Ritchie then offers this opinion: The 2019 survey of SLS [Saskatchewan Land Surveyor] C.

Swenson puts the house elevation at 494.33 m and the road in front of lot 17at 494.12 m. C. Swenson also finds that Porcupine Drive elevation in front of lot 17 to be 494.12 m, and the intersection of Bronco Driveand Otter Cres. to be 494.1 m, and the intersection of Porcupine Drive and Bronco Drive to be 494.1 m. So the roads are all still the sameelevation as Bronco Drive. HOWEVER, the SLS C.

Swenson is obviously using a Bench Mark different than the George NicholsonFranko & Associates “Spot Elevations” registered with the Government for Michel’s Beach subdivision and SBE associated with thoseelevations. [51] The next piece of evidence is the Plan. Its significance is tied to how the SBE came to be fixed, which is outlined in paragraphs[14] to [16] above. The Community Planning Email attached a “plan showing spot elevations within the boundaries of Plan 84B11865”,which includes the Michel’s Beach development.

According to the Pettigrews, the elevations on Plan 84B11865 are based on CGVD28values and it is those elevations that should have been used to develop the SBE Report. They say the Plan confirms their opinion that theSBE Report is in error. [52] The information surrounding CGVD2013 indicates, among other matters, that confusion stemming from having two verticaldatum sources for the purposes of determining sea level can be minimized by clearly indicating the source of the data being used and for“stakeholders to identify properly the datum used in their documents”. The Pettigrews say that the RM’s

Schedule ”A”, which is used fordevelopment approval, should clearly state how the SBE should be calculated in any development and the SBE should be tied to existingdevelopments on the same property. [53] From all of this evidence, the Pettigrews ask this Court to “rule that the elevations used in Michel’s Beach must be consistentwith the elevations and therefore the benchmark, utilized for the ‘Official Subdivision’ document filed with the government and approvedon March 27, 1984”. 2.

Position of the Pettigrews regarding the additional evidence [54] The Pettigrews submit that the additional evidence proves that the foundation of their home is “at 495.61 m, or very, very closeto that”. Since the garage is at the same level as their home, it too must be at that level. If these propositions are accepted, they say theSBE Report must be in error.

They say they have tried to obtain a new SBE Report based on the Plan but have been unsuccessful.According to them, the one surveyor that they had contacted would not be able to give them a different SBE Report unless he weredirected to use the elevations shown on the Plan. 3. Position of the RM regarding the additional evidence [55] The RM submits that the additional evidence does not meet the test from R v Palmer, (SCC), [1980] 1 SCR 759[Palmer], for the admission of fresh evidence. For fresh evidence to be admitted, the Palmer test requires consideration of the followingfour factors (at 775):

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, (SCC), [1964]S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [ 56 ] Referring to the Palmer test, the RM asserts that the additional evidence “is not credible in that it involves extrapolation and speculation from other information on spot elevations to determine an elevation for the foundation of the Respondents’ house and garage pad”. The RM expands on this point: 10. There is no actual survey data to support the extrapolations and speculation.

The evidence the Respondents seek to tender is that the top of the foundation of their house was built to a level two feet above the elevation of the surrounding road. However, there is no survey data as to what the actual elevation of the road was at the time the house was constructed. Further, there was no survey done by a land surveyor to establish the actual elevation of the foundation of the house. 11. Using those calculations, the Respondents now seek to assert that the elevation on the bottom of the concrete pad is at 495.61 meters above sea level.

There is no survey data that actually ties the elevation of the concrete pad of the garage to the top of the foundation of the house. 12. Further, if the Respondents wish to challenge the accuracy of the elevation of the concrete pad of the garage done by the land surveyor, they could have, by due diligence, engaged another land surveyor to run elevations as a check to those provided by the surveyor and that are in evidence.

This evidence could have been obtained prior to the hearing. [ 57 ] The RM also submits that the evidence is irrelevant “because the Respondents never advanced as an issue that the top of the garage pad met the SBE at the proceedings below”. Thus, the evidence is being offered to support what must be considered a new argument on appeal, which typically this Court refuses to hear.

The RM contends that since the Pettigrews should not be permitted to advance a new argument on appeal, the additional evidence should not be admitted either. [ 58 ] The RM also points out that the Pettigrews sought to have the Committee consider some of the additional evidence, notably an earlier version of Mr. Ritchie’s affidavit.

The Committee refused to consider this evidence, writing the following: [9] The RM objected to new evidence presented to us in relation to certain documents the Pettigrews suggest supported an elevation for the cement pad for the garage that was higher than the elevations indicated by the Safe Building Elevation Report (SBE Report) prepared by Conrad Swenson, Saskatchewan Land Surveyor, dated June 26, 2019. We share some of those concerns.

We are not prepared to question the elevations provided in the SBE Report and our findings below are grounded in the elevations provided in the SBE Report . (Emphasis added) [ 59 ] The RM submits that the Pettigrews did not cross-appeal or seek to add their own question of law when the RM’s application for leave to appeal was heard. 4.

The additional evidence should not be admitted [ 60 ] This Court’s jurisdiction on this appeal is derived from s. 33.1 of The Municipal Board Act , which provides as follows: Other appeal 33.1 Any person affected by an order, decision or determination of the board may appeal to the Court of Appeal against the order, decision or determination on a question of law or on a question concerning the jurisdiction of the board : (

a) within: (i) 30 days after the date on which the order, decision or determination is made; or (ii) any further time, not exceeding 30 days, that a judge of the Court of Appeal may allow on an application made within 30 days after the date on which the order, decision or determination is made; and (

b) with leave of a judge of the Court of Appeal. (Emphasis added) [ 61 ] The scope of this Court’s authority in this appeal is determined by the questions of law for which leave was granted in the Chambers Fiat . [ 62 ] In my view, it is questionable whether the Palmer factors apply to an appeal to the Court of Appeal under s. 33.1 of The Municipal Board Act : see, for example, Gittens v Canada (Attorney General) , 2019 FCA 256 .

However, since the RM did not raise this issue as an impediment to receiving the additional evidence, I have assumed in the Pettigrews’ favour that the Court has the discretion to admit fresh evidence under the Palmer test in relation to the questions that were stated by the Chambers judge granting leave under s. 33.1 . To be clear, my approach is not to be taken as having decided the issue for any future case. [ 63 ] Having assumed in the Pettigrews’ favour that the Palmer factors do apply, the Pettigrews encounter another legal hurdle.

The problem is the Pettigrews’ additional evidence is not directed to any of the questions for which leave has been granted. In order to consider whether this evidence should be accepted, this Court would have to add a question to those that the Chambers judge formulated.

The only possible question of law would be this: “Did the Committee err in law or jurisdiction by failing to exercise its discretion under s. 227.1 of The Planning and Development Act, 2007 , to receive new evidence that challenges the suitability or the accuracy of the elevations used in the SBE Report?” [ 64 ] Again, assuming in the Pettigrews’ favour that this Court has the jurisdiction to add a question of law at this stage of the

proceedings, the application to adduce evidence would fail in any event. The Pettigrews are seeking a remedy that goes far beyond the parameters of this appeal. They seek a ruling that calls into question the present method of determining compliance with planning and development standards at Michel’s Beach. With a change of this nature, it was clearly open to the Committee to reject the evidence.

That is not to say that the Committee lacked the power to conduct a hearing into the matter or to remit it to the RM Board; but, rather, it was clearly open to the Committee in light of the whole of this case to decline to address what would amount to a wholesale revisiting of the way in which planning and development at Michel’s Beach is being handled. [ 65 ] I appreciate that the Pettigrews have filed with this Court yet further evidence over and above what the Committee considered.

Since the Committee Decision , the Pettigrews have received a response to their freedom of information request in the form of the Plan. They say that if the Committee had had the Plan before them, they would have acted on it. This, however, does not persuade me that this Court should accept that evidence and act on it so as to grant the remedy they seek, in part, for the same reasons that justified the Committee’s refusal to admit the balance of the fresh evidence. [ 66 ] In this Court, and with this additional evidence, the Pettigrews are not raising a question of law.

They are challenging an underlying fact, i.e., whether the foundation of their garage is or should be at 495.5 m above sea level based on evidence that affects the whole of their subdivision. This is a fact that was not contested before the RM Board so it is not possible to determine either its relevance or its credibility, assuming that the Palmer factors apply. Moreover, it is not directed to the questions of law in the Chambers Fiat . Thus, having regard for the whole of it, I am not persuaded that this Court should exercise its discretion to receive this additional evidence.

To be clear, by rejecting this evidence, this Court is not passing, one way or the other, on the accuracy of the data or the validity of the hypothesis that the Pettigrews have put forward to the effect that there is or has been more than one way to determine whether the SBE requirement has been met at Michel’s Beach. Rather, this Court is saying that their additional evidence cannot be considered in this forum on an appeal from the Committee Decision . With that, I will turn to the questions of law as stated in the Chambers Fiat . B.

The Committee erred by failing to address the infringement of s. 62(1) of The Planning and Development Act, 2007 [ 67 ] The question of law being considered at this point is whether the Committee erred by failing to address the RM Board’s finding that the Pettigrews had violated s. 62(1) of The Planning and Development Act, 2007 , including by overlooking findings that the Pettigrews had not applied for or received an above-foundation development permit.

For clarity, this question pertains to whether the Committee erred by setting aside the Enforcement Order. [ 68 ] To recap, the RM issued a Stop-Work Order because the Pettigrews did not have an above-foundation development permit. This was a violation of s. 62(1) of the Planning and Development Act, 2007 , and the RM Board upheld that decision. The Stop-Work Order was issued because the Pettigrews were building their garage without a permit. The Enforcement Order directed the Pettigrews to remove all above foundation construction and to flood proof the foundation up to an estimated SBE of 495.5 m.

The Pettigrews appealed from the Stop-Work Order and Enforcement Order and asked the Board to issue them a building permit. [ 69 ] The Committee expressly declined to consider whether there had been a violation of s. 62(1) of The Planning and Development Act, 2007 . Instead, the Committee chose to consider whether the above-foundation development permit should have issued.

On this point, the Committee wrote as follows: [10] The Order [Enforcement Order] claimed the subject development contravened subsection 62(1) of the Act because construction above the foundation had commenced without a development permit having been issued by the RM and contravened

section 243 of the Act because the foundation had not been constructed to the safe building elevation indicated on

Schedule A. In view of our finding below that a permit for construction above the foundation should be issued, we need not consider the allegation of a contravention under section 62(1) of the Act , and instead will focus on the allegation the foundation constructed violated the safe building elevation indicated on

Schedule A of the foundation development permit. (Emphasis added) [ 70 ] Notwithstanding the fact that the Committee did not determine whether the Stop-Work Order should have issued, the Committee ultimately vacated the Enforcement Order. In my respectful view, the Committee erred on both counts. [ 71 ] The Committee’s decision not to consider whether the Pettigrews had contravened s. 62(1) of The Planning and Development Act, 2007 , links two issues.

It ties the issue of whether a landowner can proceed to build without an above-foundation development permit to the issue of whether the RM should have granted the permit. In my respectful view, these issues must be separately considered. If it were otherwise, landowners would not respect the development approval process.

If this Court allows the Committee Decision to stand, a landowner who is dissatisfied with a municipality’s refusal to issue a development permit can build first and, once the structure is built, prevail upon the municipal authority for an exemption or a variance to the detriment of all concerned.

It is this sort of self-help that the law discourages and the rule of law is intended to prevent. [ 72 ] The Pettigrews submit they have attempted eight times to get an above-foundation development permit and have been informed that an application would not be accepted without an SBE Report showing compliance with the foundation development permit. However, this particular submission does not advance their cause. If anything, it works against them.

They knew they did not have an above- foundation development permit, but they proceeded without it. [ 73 ] As the above review of the evidence shows, the RM granted the Pettigrews a foundation development permit on the express condition that they would have to obtain an above-foundation development permit should they wish to continue construction on their garage. The pre-development package is clear: homebuilders cannot start construction above the foundation before approval is obtained. Mr.

Pettigrew signed the application for a building permit agreeing “to comply with the Building Bylaw of the local authority and with any other applicable bylaws, acts and regulations regardless of any plan review or inspections that may or may not been carried out by the local authority or its authorized representative”.

[ 74 ] The above-foundation development permit issued by the RM for a “detached garage foundation only” was subject to conditions or standards as listed on

Schedule “A” attached to the Notice of Decision for a Development Permit, Michel’s Beach (and I repeat): All new buildings, structures and improvements are to be located above, or flood proofed up to an estimated safe building elevation of 495.5 meters above sea level based on the 1998 Sask. Water Report for Michel’s Beach on Delaronde Lake.

This must be determined by a Saskatchewan Land Surveyor prior to the permit being issued for building above the foundation. [ 75 ] In addition to not having an above-foundation development permit, the only building permit the Pettigrews had related exclusively to the foundation (i.e., only a foundation development permit). The authority of the RM is clear. Subsection 62(1) of The Planning and Development Act, 2007 , provides as follows (repeated here for reference): Development permit required 62

(1) If a zoning bylaw is in effect and a development permit is required, no person shall undertake a development or commence a use unless the person obtains a development permit. [ 76 ] Subsection 62(1) incorporates the RM’s Bylaw : 3.2 APPLICATION FOR DEVELOPMENT PERMIT 3.2.1 No person shall undertake a development or commence a use unless a Development Permit has first been obtained , except as provided in

Section 3.3. A Development Permit cannot be issued in contravention of any of the provisions of this Bylaw subject to Sections 213 to 227 of The Act . (Emphasis added) [ 77 ] The only way the Committee could side-step the s. 62(1) issue is if the Stop-Work Order should not have been issued.

Since the Stop-Work Order is based upon the fact that building had commenced without an above-foundation development permit, the RM Board did not err when it held the following (at 18): All building permits issued for the RM of Big River contain the following condition in the Plan Examination Report: “ Proceeding with any construction that differs from the proposed plan that this plan examination is based on will be treated the same as if building without a permit ”. The construction of the building was not completed as the building permit application indicated.

Permits must be obtained for any development in the Rural Municipality of Big River. The construction above foundation was being done without first obtaining permits. (Italic emphasis in original) [ 78 ] In conclusion on this question, in my respectful view, the Committee erred in law by failing to address the RM Board’s finding that the Pettigrews had violated s. 62(1) of The Planning and Development Act, 2007 . The RM Board’s decision on this point remains in place. C.

The Committee erred by ordering an above-foundation development permit should issue [ 79 ] The question of law at this point of the analysis is whether the Committee erred by ordering the RM to issue an above- foundation development permit, thereby authorizing construction, without the Pettigrews having appropriately applied for such a permit, in breach of s. 62(1) of The Planning and Development Act, 2007 , and the Bylaw .

This issue confronts directly whether the Committee erred by interpreting the legal framework so as to allow wet flood proofing of buildings as a means of complying with the SBE. [ 80 ] The Committee held on this point as follows: [17] As quoted above, the foundation development permit did not require all structures and improvements to be located above the safe building elevation, so long as they were flood proofed to that level . The Prakash Report and other evidence from the Pettigrews relating to wet flood proofing was not contradicted.

We are unable to find any reason not to accept this evidence as credible and relevant to the issue of whether the flood-proofing requirement of the permit has been met. Although it is true the Bylaw does not expressly refer to wet flood proofing, the definition of flood proofing in the Bylaw (quoted in full at paragraph [20]) is flexible and open-ended and does not exclude wet flood proofing . We therefore find the Pettigrews complied with the requirements of

Schedule A to the foundation development permit. [18] Aside from the allegation construction above the foundation had commenced without a permit, the Order was limited to an alleged violation of

Schedule A and also directed the owners to “flood proof the foundation up to an estimated safe building elevation of 495.5 metres.” Based on the findings of the Prakash Report, we conclude the Pettigrews did not violate

Schedule A and the construction as surveyed by a Saskatchewan Land Surveyor and based on the Prakash Report already met the standard sought by the Order the foundation be flood proofed to the safe building elevation of 495.5 metres . … [20] The Development Officer’s submission at page 13 directed our attention to the provision of the Bylaw defining flood proofing as: [T]echniques or measures taken to permanently protect a structure or development from flood damage.

These can include measures such as elevating building (eg. building on fill or piers), constructing dykes, creating upstream storage, diversions, and channelization. [21] This is an open-ended definition and does not rule out wet-proofing for accessory buildings , which was described by the Prakash

Report and was revealed in the evidence before the Board to be an accepted practice elsewhere. [22] At page 14 of its submission, the Development Officer also directed us to subsection 3.5.1(4)(

e) of the Bylaw , which provided the development permit application requirements included “confirmation from a Saskatchewan Land Surveyor that the bottom of the floor joists on the foundation are above the Safe Building Elevation, if the development is located near flood or slump prone lands.” The Development Officer acknowledged, for the subject garage, which had a cement pad and no floor joists, some other standard had to be applied. Her

interpretation of the Bylaw at page 14 was, in the absence of floor joists, “[T]he floor of the building has to be above the safe building elevation to ensure the RM is complying with Development Standards prescribed by Community Planning”. However, the Development Officer also acknowledged Community Planning standards do not apply to the subject property but only to properties in some other subdivisions in the RM.

Therefore, we do not have to determine whether the subject property complies with those standards, we need only determine if it complies with the Bylaw . [23] The Development Officer’s opinion that in the absence of floor joists the Bylaw requires the cement pad be above the safe building elevation was not consistent with the Bylaw ’s flexible definition of flood proofing, which allowed for wet-proofing . Indeed, structures with floor joists normally have some kind of foundation below the floor joists.

Nothing in the Bylaw required the foundation itself to meet the safe building elevation, so this was an implicit approval of wet-proofing a foundation. For the garage, the cement pad was the foundation . (Emphasis added) [ 81 ] In my respectful view, the Committee’s decision reveals three errors. First, the Committee was engaged in an exercise of statutory

interpretation. As such, it was required to consider not just the words of the various regulatory instruments but to consider them “in their entire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature” ( s. 2 - 10(1) of The Legislation Act , SS 2019, c L-10.2 ). The Committee was also required to construe any Act or regulation at issue in this appeal “as being remedial” and give statutory instruments “the fair, large and liberal

interpretation that best ensures the attainment of its objects” ( s. 2 - 10(2) of The Legislation Act ). [ 82 ] In this case, the scheme of The Planning and Development Act, 2007 , its object and the intention of the Legislature with respect to development on hazard lands are clear. According to that Act, official community plans must be directed to “the management of lands that are subject to natural hazards, including flooding, slumping and slope instability” (s. 32(2)(d)). Every official community plan must be “approved by the minister” (s. 36(2)).

Section 3.2.2.1 of the OCP, which is part of the Bylaw , states that it is intended “to discourage development on potentially hazardous land and ensure that appropriate development standards are met when development is feasible”. According to s. 52(3) (h)(

i) of The Planning and Development Act, 2007 , a zoning bylaw may regulate or prohibit development on land that is subject to flooding. The Bylaw is consistent with this provision. [ 83 ] Under The Planning and Development Act, 2007 , when an application for subdivision approval is made with respect to land considered to be “potentially hazardous”, the approving authority may “direct that any development on that land must comply with specific development standards formulated by the approving authority for that purpose” (s. 130). Again, the RM’s OCP fulfills that purpose. Policy clause (

f) of the OCP states, “As per the Statements of Provincial Interest , insofar as is practical, development of new buildings and additions to buildings to an elevation of 0.5 m above the 1:500 year flood elevation of any watercourse or water body in the flood fringe shall be flood-proofed”.

That elevation was fixed by the RM after consultation with the provincial government at 495.5 m above sea level. [ 84 ] Finally, in this review of the regulatory framework, s. 6.7.2 of the Regulations directs that “insofar as is practical” planning documents and decisions shall “[l]imit development on hazard lands to minimize the risk to public or private infrastructure”. [ 85 ] Having regard for s. 2.10 of The Legislation Act , and the regulatory scheme described above, it is apparent that the Legislature intended to restrict development on hazard lands.

In my respectful view, the Committee has settled on a definition of flood proofing in the Bylaw that promotes rather than limits development on hazard lands. [ 86 ] The Committee’s second error is that they have given the Bylaw ’s definition of flood proofing a meaning it cannot bear. For ease of reference, the definition of flood proofing in the Bylaw is as follows: Flood proofing : techniques or measures taken to permanently protect a structure or development from flood damage.

These can include measures such as elevating building (eg. building on fill or piers), constructing dykes, creating upstream storage, diversions, and channelization. [ 87 ] When this definition is read in light of the purpose to limit development on hazard lands, it is clear that the provision does not permit wet flood proofing. Flood proofing, according to the above definition, requires a technique or measure that permanently protects a structure or development from flood damage.

Further, the definition of flood proofing lists measures that prevent buildings from flooding rather than preventing flood damage, i.e., elevating the building by using fill or piers, constructing dykes, creating upstream storage, diversions and channelization. Wet flood proofing is not in line with the level of permanence of the enumerated solutions.

The Committee’s definition would add to this list a method that protects the materials used in construction from flood damage rather than preventing buildings from being flooded in the first place. [ 88 ] I note that the Committee found support for including wet flood proofing because s. 3.5.1(4)(

e) of the Bylaw requires an applicant for an above-foundation development permit to provide “confirmation from a Saskatchewan Land Surveyor that the bottom of the floor joists on the foundation are above the Safe Building Elevation, if the development site is located near flood or slump-prone lands”. The Committee found that the absence of floor joists for a concrete pad must mean that wet flood proofing is allowed. In my respectful view, this

interpretation eliminates the requirement for a certificate from a Saskatchewan land surveyor in all cases where floor joists are not used. Such an

interpretation is contrary to the purpose of the provision. [ 89 ] My third reason for concluding that the Committee erred in its

interpretation of the definition of flood proofing is that its

interpretation depends on a distinction between habitable and non-habitable structures or homes and accessory buildings. Neither the

Bylaw nor the Regulations draw such a distinction.

Schedule “A”, which is part of the development approval process, requires all “new buildings, structures and improvements” to be flood proofed to an SBE of 495.5 m above sea level. The Regulations require all new buildings to be flood proofed to an elevation of 0.5 m above the 1:500 year flood elevation, which, as I have indicated, has been determined by the RM to be 495.5 m above sea level. Thus, according to the Committee’s analysis, wet flood proofing must be acceptable for all new construction. In light of the purpose of the Regulations , such an

interpretation would leave the regulation of development of hazard lands completely open and would be contrary to the Legislature’s intention. [ 90 ] That is not to say that the RM or some other arm of government addressing development on hazard lands could not decide to allow wet flood proofing for accessory buildings. Indeed, as I have indicated earlier, on the same day that the RM Board heard the Pettigrews appeal, the RM Board recommended to the RM that it “seek engineering recommendations on wet flood proofing for non- habitable buildings (accessory buildings) for the municipality”.

Further, the definition of flood proofed in the Regulations , as I have cited above, appears to contemplate the possibility of designing structures with a view to reducing or eliminating the risk of flood damage to a defined elevation (see s. 7 of the Regulations ). However, whether the RM decides in the future that wet flood proofing will be allowed cannot determine whether the Bylaw , as presently drafted, permits such a method of flood proofing. [ 91 ] Thus, I have concluded that the Committee erred in law by ordering that an above-foundation development permit should issue. D.

The Committee erred in granting a variance 1. Introduction a. The provision to be applied: s. 221(d) [ 92 ] The question addressed in this

part is whether the Committee erred in law or exceeded its jurisdiction by improperly interfering with the exercise of discretion by the RM Board to deny a variance under s. 221 (

d) of The Planning and Development Act, 2007 , and by overlooking factors relevant to the exercise of that discretion, including applicable provincial land use policies and statements of provincial interest in relation to flood proofing under the Regulations . [ 93 ] For ease of reference, s. 221 (

d) of The Planning and Development Act, 2007 , reads as follows: Determining an appeal 221 In determining an appeal, the board hearing the appeal: … (

d) may , subject to clauses (

a) to (c), confirm, revoke or vary the approval, decision , any development standard or condition , or order imposed by the approving authority, the council or the development officer, as the case may be, or make or substitute any approval , decision or condition that it considers advisable if, in its opinion, the action would not : (

i) grant to the applicant a special privilege inconsistent with the restrictions on the neighbouring properties in the same zoning district ; (ii) amount to a relaxation so as to defeat the intent of the zoning bylaw; or (iii) injuriously affect the neighbouring properties. (Emphasis added) [ 94 ] The appeal was argued on the basis that all three criterion must be met before a variance could be granted. b.

The RM Board’s reasons with respect to s. 221(d) [ 95 ] The RM Board’s reasons on this issue are brief (at 18–19): A special privilege would be granted by allowing the appellant to construct the detached garage above foundation on a foundation that does not meet the estimated safe building elevation as stated in the development permit issued for the detached garage foundation. The Development Appeals Board is not prepared to grant the same privilege, to another party, where the same needs and conditions exist and the same bylaw standards apply.

The Development Appeals Board feels that granting the variance requested by the appellant would defeat, compromise, and be offensive to the intent of the provisions of the Bylaw . The Rural Municipality of Big River, No. 555 Zoning Bylaw 1A/16 involves the process of acquiring a permit prior to development and provides regulations which must be followed by all developers/landowners in the municipality to achieve consistency and not compromise the amenity of the neighbourhood.

Granting this variance would set precedence for future development in the municipality and potential litigation from previous landowners who have already followed the requirements of the zoning bylaw and, as such, could affect the neighbouring properties. c. The Committee’s reasons with respect s. 221(d) [ 96 ] Since the Committee concluded that an above-foundation development permit should have been issued, they did not need to consider the possibility of granting a variance under s. 221 (d).

They indicated, however, that they would do so “out of an abundance of caution” (at para 24). [ 97 ] The Committee began by framing the resolution of the s. 221 (

d) issue in the context of its finding that wet flood proofing was an interpretative option for the RM Board:

[27] The Statements of Provincial Interest Regulations, c. P-13.2 Reg 3 [Regulations] at

section 6.7 require planning documents anddecisions, as far as practicable, to prescribe flood proofing of new buildings to a safe building elevation. According to

section 7.0 of theRegulations: ‘[F]lood proofed’ means a measure, or combination of structural and non-structural measures, incorporated into the design of a structurethat reduces or eliminates the risk of flood damage to a defined elevation. [28] Similarly, the Official Community Plan (OCP) of the RM, Objective 3.2.2.1 Development on Potentially Hazardous Land, Policy (f)provides: As per the Statements of Provincial Interest, insofar as is practical, development of new buildings and additions to buildings to anelevation of 0.5 metres above the 1:500 year flood elevation of any watercourse or water body in the flood fringe shall be flood-proofed. [29] Policy (

c) under the same Objective allows flood proofing measures to be attached as a condition for a development permit approval. [30] The surveyor’s certificate, in combination with the Prakash Report, indicated the subject property had been flood proofed to a safebuilding elevation and, therefore, the existing foundation and the remainder of the construction as proposed would not violate provincialland use policies or the provisions of the OCP related to flood-proofing. (Emphasis added) [98] With respect to the criterion described in s. 221(d)(i), the Committee looked to St.

Andrew’s Presbyterian Church v Saskatoon(City) (1987), (SK CA), 63 Sask R 140 (CA) [St. Andrew’s]: [9] … The thrust and essential element of any claim for a variation involves a request for a special privilege. The special privilege is theright not to have to be consistent with the restrictions otherwise binding upon the neighbouring properties.

To accept the board’sinterpretation is to make meaningless the prospect of a property owner ever seeking relief from zoning restrictions, which relief isspecifically provided for in other provisions of the Planning and Development Act and specifically those envisaged by sections such as74(4), (6) and more specifically 96(1)(b). [99] The Committee found that the Pettigrews had a special need, which they described as follows: (a)

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