Fence dis­pute sent back to ap­peal board

Judge finds ju­ris­dic­tion mis­ap­plied in han­dling Car­bon­ear case

The Compass - - NEWS - BY AN­DREW ROBIN­SON

For the sec­ond time in less than two years, a Supreme Court jus­tice has or­dered a mu­nic­i­pal ap­peal board to take an­other look at a dis­pute be­tween the Town of Car­bon­ear and a home­owner who built a fence.

In a de­ci­sion ren­dered Fri­day, Oct. 9, Jus­tice David Os­born faulted East­ern New­found­land Re­gional Ap­peal Board, stat­ing it “im­prop­erly sub­sti­tuted its own dis­cre­tion for that of the town” with­out le­gal author­ity.

At is­sue is a fence Marie Aisthorpe built a cou­ple of years af­ter pur­chas­ing her prop­erty in 2002. She did not get a per­mit to build the fence, but did in­clude de­tails about its planned lo­ca­tion in a 2002 ap­pli­ca­tion for a per­mit to build an ex­ten­sion and move the main en­trance to an ad­ja­cent street. The fence was 72 inches tall— 30 inches above what the town per­mits.

The home­owner, who now lives in Nova Sco­tia, was is­sued a re­moval or­der in the sum­mer of 2011 and de­cided to file an ap­peal with the board.

The board va­cated the re­moval or­der and left it to the town to de­ter­mine whether the Lim­i­ta­tions Act ap­plied to the or­der be­fore de­cid­ing whether to is­sue an­other re­moval or­der.

Last June, Jus­tice Deb­o­rah Pa­que­tte of the Supreme Court of New­found­land and Labrador found the board made a mis­take in fail­ing to rule on the ap­pli­ca­bil­ity of the Lim­i­ta­tions Act. She also ruled the act in ques­tion did not ap­ply in this case and sent the mat­ter back to the board.

In March of this year, the board once again va­cated the town’s is­suance of the re­moval or­der. In a writ­ten de­ci­sion, it found the town’s de­ci­sion to is­sue the re­moval or­der was un­rea­son­able given the amount of time that passed, the lack of prior com­plaints, the fence’s vis­i­bil­ity, its in­clu­sion in the 2002 build­ing per­mit ap­pli­ca­tion, and the town’s in­abil­ity to show it had a “an ad­verse ef­fect on pub­lic in­ter­est.”

Look­ing at the board’s lat­est de­ci­sion, Os­born de­ter­mined it had al­ready noted the Town of Car­bon­ear had the author­ity in this case to is­sue the re­moval or­der and that there was no is­sue of bad faith or mis­con­duct shown in the de­ci­sion-mak­ing process to is­sue it.

“Sim­ply put, it can­not be rea­son­able for an ap­peal board to con­clude, in the face of law clearly es­tab­lished by the courts, that a coun­cil’s oth­er­wise valid re­moval or­der should be va­cated in the ab­sence of any bad faith, mis­con­duct or the like,” he wrote.

Os­born has now or­dered the board to look again at the town’s 2011 de­ci­sion, this time con­sid­er­ing only is­sues tied to abuse of author­ity, bad faith, or mis­con­duct. The board can­not re­view the rea­son­able­ness of the de­ci­sion.

PHOTO BY AN­DREW ROBIN­SON/THE COM­PASS

The fence built over a decade ago at this prop­erty in Car­bon­ear has been the sub­ject of an on­go­ing dis­pute be­tween the Town of Car­bon­ear and the home­owner.

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