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PLANNING AND DEVELOPMENT - Building regulations - Building permits - Jurisdictional powers

Wednesday, May 24, 2017 @ 9:15 AM  


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Appeal by the Penneys from a decision of the Eastern Regional Appeals Board (Board) regarding the issuance of building permits to their neighbours, the Hidgons. In 2007 or 2008, Pleman Higdon, an intervenor in the appeal, began building a retaining wall along the boundary of the Penney and Higdon lots. In 2012-2013, Pleman began building a shed adjacent to the retaining wall. The Penneys complained to the Newfoundland and Labrador Minister of Service (Service NL) that Pleman was building both structures without the proper permits. Pleman applied for and was granted the permits by Service NL in December 2013. The Penneys’ appeal of the Service NL decision to the Board was dismissed. The Penneys then sought to appeal the decision of the Board. A proceeding was launched in the Trial Division of the Supreme Court. The Justice of the Trial Division raised the jurisdictional issue of whether the applicable legislation created a right of appeal of the Board’s order to the Supreme Court Trial Division or to the Court of Appeal. The parties applied to have the appeal transferred to the Court of Appeal. Based on the agreement of the parties that the Court of Appeal had jurisdiction, the Court permitted the transfer.

HELD: The Court of Appeal had no jurisdiction to hear the appeal. The matter was transferred back to the Trial Division of the Supreme Court. Despite the parties’ agreement, the argument that the meaning of the word “court” in s. 46 of the Urban and Rural Planning Act, 2000 (URPA) changed from case to case was not sustainable on the basis of the principles of statutory interpretation. The object of the URPA was clearly to create a right of appeal of Board decisions to the Trial Division, not the Court of Appeal. The Protected Road Zoning Regulations (Regulations), being subordinate legislation, could not create a right of appeal to the Court of Appeal, where the URPA created no such right. The URPA in fact indicated that the right of appeal was to the Trial Division. Section 15 (4) of the Regulations was therefore ultra vires and there was no right of appeal to the Court of Appeal.

Penney v. Newfoundland and Labrador (Service NL), [2017] N.J. No. 137, Newfoundland and Labrador Supreme Court - Court of Appeal, C.W. White, M.F. Harrington and L.R. Hoegg JJ.A., April 13, 2017. Digest No. TLD-May222017003