Fence dispute sent back to appeal board
Judge finds jurisdiction misapplied in handling Carbonear case
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.
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.