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PLANNING AND DEVELOPMENT - Subdivision - Approval - Restrictive covenants

Friday, August 30, 2019 @ 7:42 AM  


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Appeal by the property owner from a decision of the Subdivision and Development Appeal Board upholding a stop order requiring him to remove a six-foot wooden fence built immediately inside and parallel to a four-foot common chain-link fence along the back of his property backing onto a large parkland area as being contrary to a restrictive covenant caveated against his property. The restrictive covenant prohibited any fence being erected along, parallel to the outside wall of the chain-link fence. The appellant confirmed that he was aware of the restrictive covenant when he purchased the property. He said that he interpreted the restrictive covenant word “outside” differently than the development officer and decided that he could build his wooden fence inside, but not outside, the common chain-link fence. The Board reviewed the wording of the subdivision approval and restrictive covenant. It found that a breach of the restrictive covenant was a breach of the subdivision approval, as the wooden fence was constructed parallel to the chain-link common fencing. It confirmed that the requirements were met for the issuance of a stop order, and that the development officer had jurisdiction to issue the stop order.

HELD: Appeal dismissed. On the proper interpretation of the Municipal Government Act, a breach of a restrictive covenant could support a stop work order. The appellant’s interpretation of the restrictive covenant was not reasonable. His six-foot wooden fence ran along or parallel to both the inside and the outside of the chain link fence. The reasons of the Board were complete, intelligible, and wholly adequate for explaining their decision, allowing the appellant to understand the reasons for that decision and permitting appropriate appellate review.

St. Paul-Butler v. Leduc (City) Subdivision & Development Appeal Board, [2019] A.J. No. 932, Alberta Court of Appeal, B.K. O'Ferrall, R. Khullar and K.P. Feehan JJ.A., July 16, 2019. Digest No. TLD-August26019012