After a careful
review of the evidence, the written and oral submissions of the
parties, and the applicable law, it is the decision of the Commission
to allow these appeals. The reasons for the Commission's decision
 Subsection 28(1.1)
sets out the kinds of municipal decisions that may be appealed to the
28.(1.1) Subject to subsections (1.2) to (1.4), any person who is
dissatisfied by a decision of the council of a municipality
(a) that is made in
respect of an application by the person, or any other person, under a
(i) a building, development or occupancy permit,
(ii) a preliminary approval of a subdivision,
(iii) a final approval of a subdivision; or
(b) to adopt an
amendment to a bylaw, including
(i) an amendment to a zoning map established in a bylaw, or
(ii) an amendment to the text of a bylaw,
may appeal the decision to the Commission by filing with the
Commission a notice of appeal.
 Section 2.36 of the
Community of Miltonvale Park Zoning & Subdivision Control
(Development) Bylaw 2013 (the Bylaw) defines "Development" and section
2.38 defines "Development Permit".
These sections read as follows:
2.36 "Development" - the carrying out of any construction operation,
including excavation, in preparation for building, on, over or under
land, or the making of any material change in the use, or the
intensity of use of any land, buildings, or premises and includes the
placing of structures on, over or under land.
2.38 "Development Permit" - the formal and written authorization for a
person to carry out any development.
 Section 4.1 of the
Bylaw requires a "permit" for various land related activities:
4.1 DEVELOPMENT APPROVAL
No person shall:
a) change the use of a parcel of land or a structure;
b) commence any "development";
c) construct, place or replace any structure, building or deck;
d) make structural alterations to any structure;
e) make any water or sewer connection;
f) make any underground installation such as a fuel tank, a foundation
wall, or the like;
g) move or demolish any structure;
h) establish or operate an excavation pit;
i) construct a highway;
j) place, or dump any fill or
k) subdivide or consolidate a parcel or parcels of land; or
l) construct a fence over four (4) feet (1.2 m) high
without first applying for, and receiving a
permit from Council.
Emphasis added by the Commission.
 Section 4.15(8) of
the Bylaw reads:
Council shall not issue a development permit for a development if, in
the opinion of the Council:
(8) the proposed development would be detrimental to the convenience,
health, or safety of residents in the vicinity or the general public;
 Section 4.32(i) of the Bylaw reads:
4.32 DENYING PERMITS
(i) No development permit shall be issued if the proposed development
could create a hazard to the general public or any resident of the
municipality or could injure or damage neighbouring property or other
property in the municipality, such as injury or damage to include but
not be limited to water, drainage or other water run-off damage.
 Appeals under the
Planning Act take the form of a hearing
de novo before the Commission.
In an often cited decision which provides considerable guidance to the
Commission, In the matter of Section 14(1) of the
Island Regulatory and Appeals Commission Act (Stated Case),
 2 P.E.I.R. 40 (PEISCAD), Mitchell, J.A. states for the Court at
it becomes apparent that the Legislature contemplated and intended
that appeals under the
Planning Act would take the form of a hearing de novo
after which IRAC, if it so decided, could substitute its decision for
the one appealed. The findings of the person or body appealed from are
irrelevant. IRAC must hear and decide the matter anew as if it were
the original decision-maker.
 In previous appeals, the
Commission has found that it does have the power to substitute its
decision for that of the municipal or ministerial decision maker. Such
discretion should be exercised carefully. The Commission ought not to
interfere with a decision merely because it disagrees with the end
result. However, if the decision maker did not follow the proper
procedures or apply sound planning principles in considering an
application made under a bylaw made pursuant to the powers conferred
Planning Act, then the Commission must proceed to review the
evidence before it to determine whether or not the application should
 However, a consideration as to
whether or not a decision maker followed "the proper procedures" ought
not to be viewed narrowly to include only ascertaining that the
required notices were issued and other preliminary steps taken.
Rather, "proper procedure" applies to the entire decision
making process, from receipt of an application to the rendering of a
decision. The decision
maker must always follow the applicable law.
 The Commission considered a
two-part test, which serves as a guideline in determining appeals
Whether the municipal
authority, in this case the Respondent, followed the proper process
and procedure as required in its Bylaw, in the
Planning Act and in the
law in general, including the principles of natural justice and
fairness, in making decisions on what are essentially development
permit applications; and
Whether the Respondent's
decisions with respect to the applications for development permits for
the placement of fill have merit based on sound planning principles
within the field of land use and urban planning and as enumerated in
the Official Plan.
 In Charlottetown (City) v.
Island Reg. & Appeals Com. 2013 PECA 10, Chief Justice Jenkins of the
Court of Appeal stated:
 I would endorse the Commission's two-step approach that it employs
as a guideline when determining appeals under the
Planning Act. Once the Commission confirms that a planning
appeal is within its jurisdiction to decide, its initial review of the
decision appealed from is for procedural error. Because such
applications are essentially for rezoning or bylaw amendment, in which
Council's decisions affect rights, such an error may render the
decision under review subject to being declared invalid.
 In both the Respondent's June 30, 2014 and October 28,
2014 decision letters, the Respondent cited subsections 4.15(8) and
4.32(i) as the basis for their decision. This position was maintained at the
hearing by the Respondent's representative.
 In order to determine whether
proper process and procedure was followed, a brief review of case law
relating to the issuance of municipal permits is helpful.
 In Re East Royalty; Affleck v.
East Royalty, Village Commissioners of  P.E.I.J. No. 62, Justice
MacDonald of the Supreme Court of Prince Edward Island (Appeals
5 The case law in this area has been stated many times and it is
that any by-law, regulation or statute that is restrictive on the
common law rights of a person or the liberty with which he may
exercise those rights are to be strictly construed.
If the rights of a person are to be effected it must be done in
the clearest legislative language and if the right is to be restricted
by a municipal government, the authority to do so must be found in the
 In Ottawa (City) v. Boyd
Builders Ltd.  S.C.R. 408 Justice Spence of the Supreme Court of
5 An owner has a prima facie
right to utilize his own property in whatever manner he deems fit
subject only to the rights of surrounding owners, e.g., nuisance, etc.
This prima facie right may be defeated or superseded by
rezoning if three prerequisites are established by the municipality,
(a) a clear intent to restrict or zone existing before the application
by the owner for a building permit, (b) that council has proceeded in
good faith, and (c) that council has proceeded with dispatch.
LA11-01, Biovectra Inc. v. City of Charlottetown,
the Commission stated at paragraph 61:
 The caselaw is clear.
At common law, a property owner may do with his land what he wishes,
subject to the rights of surrounding property owners, for example, the
law of nuisance. However, these rights may be restricted by
statute, regulation or bylaw. Such restrictions must be
expressed clearly and with solid legislative authority. To the
extent that discretion is permitted by the statute, regulation or
bylaw the wording must be clear and the criteria objective.
Arbitrary discretion is to be avoided.
 The applicability of
subsection 4.32(i) of the Bylaw very much appears to be based on concerns noted in the
Respondent's Planning Board minutes of October 16, 2014.
Subsection 4.32(i) speaks of a "hazard to the general public"
or "could injure or damage neighbouring property or other property in
the municipality" and non-limiting examples of injury or damage are
listed as "water, drainage or other water run-off damage".
While some anecdotal evidence of water concerns was mentioned
by one of the members of the public, such evidence was understandably
subjective and concerns such as water in a basement could be
attributable to other factors. To
apply subsection 4.32(i) convincingly, objective evidence would need
to demonstrate that the proposed development could cause a "hazard" to
the general public or "injury" or "damage" to neighbouring or other
property. While the
concerns noted in the Planning Board minutes of October 16, 2014 are
numerous, objective evidence to support these concerns is not
presently before the Commission.
 Subsection 4.15(8) of the
Bylaw is also relied on by the Respondent.
Section 4.15(8) is mandatory in nature and gives discretion to
the Respondent's Council.
The wording specified is "the proposed development would be
detrimental to the convenience, health, or safety of residents in the
vicinity or the general public;".
 In the evidence before the
Commission, a common theme based on past experience is concerns over
dust, noise, unauthorized access and hours of operation.
While it is understandable that a decision maker would consider
past experience as an aid to predicting the future and therefore
helpful in setting conditions to a development permit, it is also
essential that a decision maker maintain an open mind to consider a
new application as a fresh application.
 An analysis of the
Respondent's process and procedure is therefore appropriate to examine
how the Respondent considered its Bylaw and exercised its discretion.
 The following are the minutes
of the Respondent's Council pertaining to the June 26 and October 23,
2014 decisions with respect to the Appellants' applications:
Minutes - Community of
Miltonvale Park Page 4 and 5 of 8 Approved on September 25, 2014
iv. Planning Board
a. Development Applications and
Motion 2014:75- Moved by
Councillor George Piercey, seconded by Councillor Gail Ling that due
to detrimental effects to nearby landowners, and enforcement issues
with previous permits, Council deny application MP-0914 to place fill
on parcel 283085. Motion carried.
Minutes - Community of
Miltonvale Park Page 4 of 7 Approved on November 27, 2014 October 23,
iv. Planning Board
a. Development Applications
- Moved by
Councillor George Piercey, seconded by Councillor Walter Carver that,
as recommended by Planning Board, Council deny application MP-0934 - O'Halloran fill application PID 0283085.
There was concern noted that
the drainage patterns on an adjacent property may have been altered,
and if approval were to be considered in the future, an engineered
drainage plan may be required.
 Neither of the above minutes
provides much detail, however both have adopted the recommendation of
 The June 17, 2014 minutes of
Planning Board note the following:
The October 16, 2014 minutes of Planning Board note the
#MP-0934-Oscar O'Halloran (Phillip O'Halloran)- The applicant has
filed to continue filling the area of the property 0283085 from the
edge of what has already been filled to the boundary of the
wetland/buffer as delineated in the plan submitted, in an application
that is virtually identical to application #MP-0914 (currently under
received from Jay Carr with the province's Environment Department, who
had no issues with the application.
Dale Thompson, with a different division within Environment,
notes a 15 metre buffer zone would be required adjacent to all
watercourses and wetlands, and a provincial permit would be required.
Transportation and Infrastructure Renewal repeated comments
from 07/01/2011 noting that the traffic division had no issues, but
the finished grade should be no higher than the centerline of the
road, and be graded no more than 10% away from the ROW.
Mr. Thompson noted other environmental approvals may be
required and the area should not be infilled in such a way to
substantially alter the natural surface water drainage patterns.
There have been several permits issued for fill on the property
in recent years and a development agreement; however, there were more
than fifteen contraventions between April 2012 and October 2013; and
several since, including not filing certification of the grade, not
levelling or seeding, and placing fill without a permit.
Nearby landowners have also complained to Council.
noted that the fill placed on the property may have altered the flow
of drainage as there is a swale on the nearby property that did flow
across the property.
online was consulted and concerns remain regarding the water flow.
states (subsection 4.15.8) Council shall not issue a development
permit for a development if, in the opinion of the Council: ... the
proposed development would be detrimental to the convenience, health,
or safety of residents in the vicinity or the general public; and
4.31(i) [sic] No development permit shall be issued if the proposed
development could create a hazard to the general public or any
resident of the municipality or could injure or damage neighbouring
property or other property in the municipality, such as injury or
damage to include but not be limited to water, drainage or other water
changes were noted in this application from the previous one which was
denied and appealed, although the property has been issued a
provincial permit, which notes that municipal permits be obtained if
permit is issued using different criteria from the community, as the
impacts on neighbouring properties would not be a consideration.
The province would also not have experienced the same issues
with non-compliance as the municipality has.
Moved by Betty
Pryor and seconded by Sheila MacKinnon that Planning Board recommend
to Council that application MP-0934 be denied.
Respondent's Council accepted the recommendations of its Planning
Board for both applications.
"detrimental" is not defined in the Respondent's Bylaw, section 2.35
of the Respondent's Bylaw defines "detrimental impact":
"Detrimental Impact" - any loss or harm suffered in person or property
in matters related to public health, public safety, protection of the
natural environment and surrounding land uses, but does not include
potential effects of new subdivisions, buildings or developments with
competition with existing businesses;
development approved pursuant to subsection 9 (1) of the Environmental
 The above cited
definition appears to mirror the definition of detrimental impact
contained in clause 1.(f.3) of the
Planning Act Subdivision and
 Black's Law
Dictionary, 9th edition, defines "detriment":
Detriment.(15c) 1. Any loss or harm suffered by a person or
 In Order
LA09-02 Michael Reid v. Minister of Communities, Cultural Affairs and
Labour, the Commission considered the matter of detrimental impact,
albeit from the perspective of areas of the Province without an
Official Plan and Land Use / Development Bylaw.
 In Order
LA00-04 George R. Schurman et al v. Minister of Community Services and
Attorney General, February 18, 2000, the Commission considered the
issue of detrimental impact in substantial depth and concluded:
Commission considers the objects of the Act as defined in Section 2 of
the Act and the definition of detrimental impact within the scope of
the Regulations, the Commission is of the opinion that clause 15(1)(c)
requires the Respondent to consider potential impacts on neighboring
properties when determining whether a permit should be granted. It
seems clear from the wording of this clause and the supporting
definition that the Lieutenant Governor in Council, in drafting the
clause, contemplated that the Respondent would have to give
consideration to whether a building structure, its alteration, its
repair, its location, its use or its change of use would have a
detrimental impact on among other things - surrounding land uses.
this conclusion, the Commission understands that in the end, any
anticipated impact on surrounding land uses must be reasonably
assessed by the issuing authority, with the degree or
level of any
anticipated interference or disturbance to surrounding land uses
determining whether clause 15(1)(c) becomes operative. The "degree"
and "level" aspect of the assessment is, therefore, key as the
Commission does not believe the intention of this clause is that no
impact on the surrounding land uses will be permitted. Such an
interpretation would be counter to basic land use planning principles
which acknowledge that all development has some impact on neighboring
believes that the disturbance and inconvenience experienced by the
Appellants in this case is very real and cannot be discounted - and we
have sympathy for how this has impacted their lifestyle. However, when
considering these impacts, the Commission must also be cognizant of
the mix of existing land uses in the immediate area and the level of
existing commercial activity on the Developer's property prior to the
most recent additions. The Commission also must consider the fact that
the involved area does not have a land use plan and associated zoning
and development bylaws and, as a result, is subject to less
restriction and control on development under the provisions of the
Regulations (e.g. - mixed land uses being able to locate on adjacent
therefore concludes that, while the Appellants' use of their land has
been negatively impacted, the development covered by the permits being
appealed does not unreasonably impact on the surrounding land uses
given the circumstances existing in this area. As a result, the
Commission finds that there is not detrimental impact to surrounding
land uses within the context of its meaning and application within the
Commission notes that while the section numbers have changed over the
years, the relevant wording of subsection 15(1) referred to in
Schurman et al is essentially the same as the present wording of
 In the
present appeal, the Commission finds that the evidence demonstrates
that the noise associated with the facility has a very real negative
impact on Mr. Reid and the other residents who testified at the
hearing. The Desable area does not have an official plan and land use
bylaw with zoning and development requirements. As there is no
official plan and development bylaw, there are fewer restrictions on
development in Desable. Based on the evidence provided at the hearing,
the Commission finds that the impact of the noise of the facility
falls short of the degree and level associated with detrimental impact
as defined in the regulations.
 In this current
appeal, the Commission notes that the Respondent has an Official Plan
and its Bylaw. While the
Respondent's Bylaw does provide somewhat more restrictions in general
with respect to development than the development requirements set out
Planning Act Subdivision and Development Regulations and while
the Respondent's Bylaw does contain nine zones, the Respondent's Bylaw
has not set out any specific terms and conditions pertaining to
development permits for the placement of fill.
In addition, the placement of fill does not appear to be
restricted with respect to particular zones.
Although the Bylaw requires a permit for the placement or
dumping of fill or other material, there are no specific provisions to
establish what is necessary for an applicant to obtain such a permit.
This would tend to suggest that a development permit for the
placement of fill would be forthcoming, so long as an application has
been made. Sections 4.15
and 4.32 of the Bylaw contain many provisions, including 4.15(8) and
4.32 hat then attempt to restrict development on a discretionary basis.
 The evidence
before the Commission in the present appeal suggests that noise and
dust do have an effect on neighbouring properties.
However, this evidence fall shorts of that necessary to
establish detrimental impact.
 In Resort Municipality v. Island Reg. & Appeals Com. & Ano.
2014 PECA 19, the Court of Appeal addressed the issue
of deference to a municipal decision maker:
As the Commission has previously stated in many cases, deference is
earned when a decision maker follows the process set out by the law.
While as a matter of law it is open to the Commission to substitute
its decision for that of the Municipality, it cannot do so merely
because it disagrees with the end result.
 In Mackenzie v. Toronto (1915) 7 O.W.N. 820 at page 821, Middleton J. stated:
When the plans and specifications of the proposed building conform to the building
by-law, the duty of the civic official is to issue the permit.
 In Doman Industries Ltd. v. North Cowichan (District),  B.C.J. No. 96,
116 D.L.R. (3d) 358, Bouck J. noted at paragraph 40:
40 An owner of land is entitled to know what qualifications he
must comply with in order to obtain a development permit.
These should be in the development permit division of the
 In Dominion
Stores Ltd. v. Borough of Etobicoke et al. 1982 CarswellOnt 665,
135 D.L.R. (3d) 301, Gallagan J noted at paragraph 2:
2 The applicant wishes to build and operate a large supermarket
on the site. The proposed
use is in all respects in compliance with the zoning by-laws of the
applicant applied for a building permit and it is admitted that it has
complied in all respects with the requirements therefore.
Accordingly it is prima facie entitled to a building permit:
Ottawa v. Boyd Bldrs. Ltd.,  S.C.R. 408, 50 D.L.R. (2d)
 The Respondent
considered both applications thoroughly, responding to concerns
raised by residents and mindful about alleged violations of past
permit conditions and a previous development agreement.
The common law is clear, however;
prima facie [at first sight]
an applicant is entitled to a development permit if the application
meets the requirements of the Bylaw.
 The Bylaw gives
the Respondent's Council the discretion to deny a permit under the
Bylaw, according to the test of "....detrimental to the convenience,
health, or safety of residents in the vicinity or the general public"
in subsection 4.15(8) or "...a hazard to the general public or any
resident of the municipality or could injure or damage neighbouring
property or other property in the municipality..." in subsection
Justice Cheverie considered section 4.73 of the then City of
Charlottetown Zoning and Development Bylaw:
OBNOXIOUS, HAZARDOUS OR UNHARMONIOUS DEVELOPMENT
that would, in the opinion of Council, be inferior to the general
standard of appearance prevailing or intended to prevail in the area,
create a nuisance, a hazard or be obnoxious to the public or
Significantly or permanently injure neighbouring properties by reason
of architectural disharmony; traffic generation; noise or vibration;
emission of gas, fumes, dust, oil or objectionable odour; or unsightly
storage of goods, wares, merchandise, salvage, refuse matter, waste or
other materials Shall be refused.
Notwithstanding the various directions with respect to
interpretation of municipal bylaws to give effect to their intent,
this case centres on the statement of principle contained in the
Verdun case and reiterated in the Greenbaum case by the Supreme Court
of Canada that a bylaw, which exceeds a municipality's jurisdiction
ever so slightly, will be declared ultra vires.
The answer to the question of whether or not s. 4.73 of the
bylaw is ultra vires is contained in the Verdun case.
While there are factual differences between that case and the
case at bar, the law, as articulated in Verdun remains accurate and
The offensive bylaw in the Verdun case indicates that once the
building inspector inspected the land, building, or premises, and was
satisfied that the requirements of the bylaw were met "he shall
transmit a certificate to this effect to the City Council, which may,
at its discretion, grant or deny the permission applied for" (p. 4
Quicklaw version). The
key phrase is "at its discretion".
The parallel with the case at bar is the phrase contained in s.
4.73 "in the opinion of Council".
While the offensive bylaw in Verdun contains no language
descriptive of the discretion in Council, s. 4.73 includes just the
opposite - a series of subjective and objective criteria with little
or no explanation as to their meaning.
In fairness, the City argues that "obnoxious use" is defined in
s. 3.131 of the bylaw as follows:
"Obnoxious Use" means a Use which from its nature or operation
creates a nuisance or is offensive by the creation of noise or
vibration, or by reason of the emission of gas, fumes, dust, oil, or
objectionable odour, or by reason of the unsightly storage of goods,
wares, merchandise, salvage, refuse matter, waste, or other materials.
The City also
argues that the word "nuisance", as used in the definition of
obnoxious use, is subject to the ordinary standard dictionary
definition and includes anything injurious or obnoxious to the
community, or to the individual as a member of it, for which some
legal remedy may be found. The
City cites other definitions of nuisance to make its case, but the
fact is the City did not point to any of these specific reasons in
deciding to deny MacArthur's building permit.
The Supreme Court of Canada in Verdun had the following to say
concerning the bylaw in that case (p. 7 Quicklaw version):
reading of section 76 is sufficient to conclude that in enacting it,
the City did nothing in effect but to leave ultimately to the
exclusive discretion of the members of the Council of the City, for
the time being in office, what it was authorized by the provincial
Legislature, under section 426, to actually regulate by by-law. Thus,
section 76 effectively transforms an authority to regulate by
legislation into a mere administrative and discretionary power to
cancel by resolution a right which, untrammelled in the absence of any
by-law, could only, in a proper one, be regulated. This is not what
section 426 authorizes.
Exactly the same conclusion may be reached when one examines s.
4.73 of the present bylaw.
Although it contains a medley of events, circumstances, or
things which "in the opinion of Council" constitute reasons for
refusing any development, it is, in effect, a menu without detail.
It leaves to the exclusive discretion of the members of City
Council of the day the ultimate authority to deny any development
which, in its opinion, falls into any of the myriad of things
contained in s. 4.73.
example, the development might be inferior to the general standard of
appearance prevailing or intended to prevail in the area.
What does that mean?
Where are the objective criteria for that statement?
Likewise, the development might significantly, or permanently,
injure neighbouring properties by reason of architectural disharmony.
What does that mean?
And what are the criteria by which it is judged?
When the bylaw refers to such things as traffic generation, or
noise, or vibration, then presumably there are some objective criteria
respect to traffic generation, the only real evidence gathered by the
City is contained in a report from the Manager of Public Works (tab 15
of the record) and the Deputy Chief of Police (tab 17 of the record).
In each case their responses do not reflect any serious
One could pluck
out other examples within this section of the bylaw, but the point is,
much of the criteria are very subjective in nature, and those which
are not stand alone without description.
In my view, this section "Effectively transforms an authority
to regulate by legislation into a mere administrative and
discretionary power to cancel by resolution a right which...could
One must keep in mind that MacArthur's proposal met the as of
right provisions in the bylaw for a project like a 23 unit apartment
In the Verdun case, Fauteux J. went on to cite, with approval,
The comments of
Sir Melbourne Tait, then A.C.J., in Corporation du Village de
Ste-Agathe v. Reid [Q.R. 10 R. de J. 334.], quoted by Gagn� J.A., and
approved by McDougall and Bertrand JJ.A., are to the point. At page
337, the learned jurist, speaking for the Court of Review, said:
A by-law is
passed after certain formalities, and while in force is general in its
application; it is published and is known to the ratepayers of the
municipality, whereas a resolution may be passed without such
publicity. Moreover, the composition of the council changes from time
to time, the conditions might be changed from meeting to meeting, and
the council would then have it in its power to permit one person to
erect a saw-mill propelled by steam, upon certain conditions, and in a
certain locality, and refuse the same rights to others.
This goes to
the very heart of the issue. What might be inferior to the general standard of appearance
prevailing, or intended to prevail in the area as referred to in s.
4.73, may have a certain meaning to the members of one Council of the
City and not enjoy the same meaning to another Council of the City,
or, indeed, by any particular combination of members of one Council
when meeting together to decide an issue. Likewise, the same may be said of what is meant by
architectural disharmony, or the unsightly storage of goods, wares,
merchandise, salvage, refuse matter, waste or other materials as set
out in s. 4.73 - the meaning and interpretation of these words may
have a different meaning to different Councils or different
combinations of persons within a given Council, and this may result in
discrimination from one project to the next.
Fauteux J. concludes in Verdun (at p. 8 of the Quicklaw
to erect and conditions would thus be subject to the mere whim of the
persons who might form the council of any particular meeting ... It
(the by-law) opens the door to discrimination and arbitrary, unjust
and oppressive interference in particular cases. It is not really a
by-law at all,...
In my view, s.
4.73 is not really a bylaw at all, but, rather, it is a declaration
that City Council, in its opinion, shall deny any development by
referring to any of the list of items set out in s. 4.73, most of
which there has been no attempt at all to define objectively.
Therefore, a person such as MacArthur, who follows the rules
prescribed by the City for a building permit, is faced with a denial
of his application because the City has invoked the arbitrary language
contained in s. 4.73.
appears from the record that the City was responding to concerns
raised by residents in the area to the entire project when those
residents became aware of the application for variation.
While one can never argue with the responsibility of elected
officials to respond in a meaningful way to the concerns of its
citizens, the balance between certainty and arbitrariness must be
No doubt the City spent a great deal of time developing its
zoning and development bylaw.
There would have been a great deal of discussion and public
consultation before that bylaw was adopted.
The bylaw provides for certain activities and developments in
different areas of the City.
This, no doubt, is an attempt to keep like things together and
also to provide opportunity for further development within the City.
The property in question is property where a 23 unit apartment
building is, on its face, allowed.
MacArthur presented his application to the development officers
with the City and proceeded with their blessing.
However, once general objections were raised in the
neighbourhood, the City decided to deny the application, first
according to s. 4.60 of the bylaws and then it rescinded that decision
and replaced it with a decision to refuse the application based on s.
4.73. The certainty for
any proposed developer which is evident from a review of the
appropriate zoning and development bylaw is, therefore, at the whim of
the invocation of a bylaw such as s. 4.73.
The line has been crossed; this should not happen.
That is why a bylaw such as s. 4.73 is ultra vires and I so
Since I have found that s. 4.73 of the bylaw is ultra vires, I
need not consider the alternative argument advanced by MacArthur that
the City failed to follow its own bylaw procedure.
Accordingly, pursuant to para. 3(3)(e) of the Judicial Review
Act, MacArthur's application for a building permit is referred back to
the City for further consideration.
The application should be considered as one which has been
interrupted and not an application which must be started afresh.
 Although subsection 4.32(i) does not use words
that immediately speak of discretion, the use of such a provision, in the absence of truly objective evidence, would be
 The Commission
finds that subsections 4.15(8) and 4.32(i) would only apply to a development permit application if truly
objective evidence was before the Respondent. In the present appeals, the
Commission determines that there is insufficient objective evidence to
warrant a denial of a development permit for the placement of fill
pursuant to subsections
4.15(8) and 4.32(i).
the Commission allows both appeals, quashes the Respondent's June 26,
2014 and October 23, 2014 decisions pertaining to this matter and
orders the Respondent to issue the Appellants a development permit for
the placement of fill, effective for the 2015 year. In so doing, the Respondent may attach reasonable and relevant
conditions to such permit or may require a development agreement
setting out reasonable and relevant terms.
 As the
Commission has determined that the Respondent has not met the first
part of the Commission's two-part test, it is unnecessary to determine
whether the Respondent's decisions were in accordance with sound
 The Respondent
has demonstrated a desire to carefully regulate the placement of fill
within the Respondent community.
However, an applicant for a development permit is entitled to a
development permit so long as the Bylaw requirements have been met.