Battle of Bunker Hill
Board backs Carbonear council’s decision to refuse permit to build house on service road
Another chapter in the sixmonth saga of a Carbonear couple’s efforts to acquire a permit to build a dwelling house in that Conception Bay town ended earlier this month, when the Eastern Newfoundland Regional Appeal Board upheld the town’s earlier decision to deny their application.
The saga began on April 23 of this year when Walter and Debra Bradbury applied to the town council for a building permit to construct a single dwelling on a nameless service road in an unserviced area in the north end of town. The dirt road runs immediately south of and parallel to Columbus Drive from English Hill west to Bunker Hill.
The board’s seven-page ruling noted the “town did not approve the development because the property lacks adequate road access and services.”
However, council did indicate its willingness to discuss options for allowing the proponents to develop the necessary services and
infrastructure at their own expense under the Carbonear Municipal Plan and Development Regulations.
Now that they have lost their appeal, the Bradbury’s final recourse would be to appeal the board’s decision to the Supreme Court of Newfoundland and Labrador Trial Division on a question of law or jurisdiction. According to the board, the Bradburys are entitled to appeal the decision to the Supreme Court under section 46 of the Urban and Rural Planning Act 2000.
After listening to the Bradburys make their case before a June 8 regular council meeting, council voted unanimously to deny their application for a permit “to construct a single dwelling home off the service road leading to Bunker Hill. The applicant does not meet the requirements of the Carbonear Municipal Plan and Development Regulations as it does not have frontage on an approved town street.
At the time Town Administrator Cynthia Davis, who also attended the Oct. 8 appeal board hearing, cited the town’s development regulations. They stipulate neither a permit nor approval in principle can be issued for development within a planning area which does not have adequate road access, power, drainage, sanitary facilities or domestic water supply... unless the applicant agrees to pay the full costs of installing these services.
The Bradburys’ appealed to the board, which comes under the Department of Municipal Affairs, on June 26, on the grounds the town has been using the service road for over 25 years, and they argue if it must be upgraded council should be responsible for the upgrading.
On July 7 the town issued a “stop work order” to cease development immediately on the property, citing legislative and regulatory authority why the development is not to proceed pending a decision under appeal.
In reaching its recent decision, the appeal board considered technical advice including the Carbonear Municipal Plan and Development Regulations. According to the latter, the Bradburys’ property is located within a Residential Rural (RR) Land Use Zone.The proposed single dwelling is permitted use within the RR zone, subject to development standards including minimum frontage of 30 metres.
Among other things the board considered in particular the town’s authority to deny development on a lot that lacks the appropriate roadway infrastructure, as well as the town’s right to pass on costs to the applicant to develop a road to the town’s standards.
The board learned the roadway corridor, which provides access to the Bradburys’ property is located either wholly or partly within the Department of Transportation highway reserve.
They also learned the town had not received any official notification or deed of conveyance relating to the Bradburys’ ownership of the property, and would not be issuing permits until they were provided.
The town asserted it does not own the land on which the roadway corridor is located. Even if the municipality did own the land, it would be contrary to its Municipal Plan and Development Regulations to use taxpayers’ money to fund a road development.
The Bradburys argued before the board that town staff drive on, grade and plow the road.
The board found “the alleged use and maintenance of the service road may have created an illusion that the road is publicly maintained.”
The town asserted the road in question is “not an official road in the town’s inventory, or included on a regular maintenance schedule sanctioned by the town council or administration.
The board did not find sufficient evidence to support the Bradburys’ argument that the road is publicly owned and maintained by the municipality.
In looking at the town’s stop work order, the board learned at the hearing the development, including an accessory building, artesian well and placement of shale on the service lot, had been ongoing on the Bradburys’ property, without any written permits from the town.
The board acknowledged it recognizes “the frustration involved in situations where properties are purchased with beliefs or assumptions that the land is developable, when in fact development is contrary to the town’s policies and regulations.
Determining that any development within a community requires a permit, the board argued: “it is the responsibility of members of the public to ensure proposed developments fall within the guidelines of what the town may permit in accordance with its Municipal Plan and Development Regulations prior to purchasing property for development.”
Back at the June 8 council meeting, Councillor Gladys Mercer, who chaired that portion of the meeting, asked Walter Bradbury: “When you called the town to inquire about the property, were you mislead by any member of council or its employees?”
Admitting he did not feel he had been mislead by anyone, Bradbury replied, “but when we saw vehicles go back and forth (the road), we didn’t question that it was a town road.”
At the time, Coun. Mercer went on to point out that the town “has many pieces of land on service roads, but the cost of building new roads would not be in our best interests. And if we say yes to one, we have to say yes to all. We’ve had people living on dirt roads for 10 years,” the councillor noted. She recalled council has had no less than five applications for similar developments earlier this year.
Town Administrator Davis confirmed the number, adding, in all those cases council advised the applicants, “if they were prepared to absorb this development cost, they could proceed. In all cases, she noted the developers agreed to pay the development costs.
Coun. Mercer wondered what council would tell those who had already paid, if the town were to approve the Bradburys’ application.
Reached in Vancouver where she was vacationing last Thursday, Coun. Mercer told The Compass engineers have estimated a standard road upgrade to bring the road in front of the Bradburys’ property up to standard to allow their proposed development (construction of single dwelling) would cost the town’s taxpayers $150,000. “That works out to $75 for each of the town’s approximately 2,000 households,” Coun. Mercer explained.
Walter and Debra Bradbury assert they feel “discriminated against by the town” However the board said it found “no evidence that Mr. and Mrs. Bradbury were dealt with in a discriminatory manner by the town...”
The board concluded not only that the town was within its authority to deny the permit to build a residence on the property, under the circumstances, but the town had no choice. It is bound to permit development only according to its own Municipal Plan and Development Regulations.
The board confirmed the town’s decision to refuse a permit to develop a single dwelling on the service road between Bunker and English Hills.
The town is also bound by the Eastern Newfoundland Regional Appeal Board’s decision, which is binding on all parties.
Compass file photo by Bill Bowman WALTER AND DEBRA BRADBURY review documents and aerial maps dating back to 1979 which show an unnamed service road. The couple lost their appeal to the Eastern Newfoundland Regional Appeal Board, which confirmed in its Oct. 8 ruling the town’s decision to refuse a permit to develop a single dwelling on the service road between Bunker and English Hills.