Making the Case
Appearing Before
the Regional Appeal Boards
Avalon Regional Meeting
PMA
February 26, 2010
Making the Case - Agenda
1. What are the Regional Appeal
Boards?
2. Matters subject to appeal
3. Responsibilities of the Municipality
4. Documentation
5. “Lawyering” up
Making the Case – Agenda (cont’d)
6.
7.
8.
9.
Rules of Procedure
Presenting at the Hearing
Rebutting contrary evidence
What decisions can an Appeal
Board make?
10. Acting on or contesting the Board’s
Decision
11. Case Study: Mock Appeal
Making the Case
“If there is no struggle, there is no
progress. Those who profess to favor
freedom, and yet deprecate agitation,
are men who want crops without plowing
up the ground. They want rain without
thunder and lightning. They want the
ocean without the awful roar of its many
waters. Power concedes nothing without
a demand. It never did, and it never will.”
Frederick Douglass
Canandaigua, N.Y., Aug. 3, 1857
Making the Case
Making the Case – What are the Appeal Boards
•Medium for dispute resolution?
•Arbitrator?
•Judicial Court?
•Upper House to a Council?
•Experts in the field?
•Something to be feared?
Making the Case – What are the Appeal Boards
An accessible mechanism for
persons aggrieved of a Council
decision where that decision can be
subjected to an impartial review.
Making the Case – What are the Appeal Boards
•Part IV, Urban and Rural Planning
Act, 2000
•Four Regional Boards:
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East Newfoundland
Central Newfoundland
West Newfoundland
Labrador
•Local Boards
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Cities
Making the Case – Regional Appeal Boards
•MA Role:
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Administrative Support
Resources
Payment of Travel and Stipends
Provision of Technical Advice
Retention of Legal Counsel
Making the Case – Regional Appeal Boards
•Board Composition
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3-5 members, including Chair
3 year Appointments
Renewable only once
July 2010
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East - 2 of 4
Central – 5 of 5
West - 2 of 4
Making the Case – Matters Subject to Appeal
•S. 42(1) Urban & Rural Planning Act
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Development application
Revocation of development permit
Issuance of stop work order
•Municipalities Act
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S. 194 – Requirement for Permit
S. 404(1) – Issuance of Orders
Making the Case – Matters Subject to Appeal
•Occupancy & Maintenance Regulations
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Bay Roberts
Carbonear
Conception Bay South
Deer Lake
Harbour Main - Chapel's Cove - Lakeview
Mount Pearl
Paradise
Placentia
Pouch Cove
Sunnyside
Wabush
Making the Case – Matters Subject to Appeal
•Interim Development Regulations
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Belleoram
Eastport
Happy Adventure
New-Wes-Valley
Old Perlican
Salvage
Sandy Cove
Small Point-Broad Cove-Black HeadAdam's Cove
St. Lewis
Making the Case – Appeal Requirements
•14 Days
•Copy of the decision being appealed
•Written Statement of Grounds
•Appeal fee
Making the Case – Council Responsibility
•Be prepared
•Documentation
•Application Forms
•Recommendations to Council
•Council Minutes
•Notification of decision and right to
appeal
Making the Case – Council Responsibility
•Appeal filed… Now What?
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Disclosure
S. 7(3) Development Regulations :
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application being appealed
all correspondence
council minutes
plans
other relevant information relating to the
appeal
the names and addresses of the applicant
and other interested persons of whom the
authority has knowledge
Making the Case – Council Responsibility
•Appeal filed… Now What?
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Work Shall Not proceed
S. 45(1) URPA:
“Where an appeal is made under
section 42, the development with
respect to the appeal, work related to
that development or an order that is
under appeal shall not proceed or be
carried out, pending a decision of the
board.”
Making the Case – Legal Counsel
•Considerations
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Cost
MNL, first call is free
Nature of appeal
Stated grounds of appeal
Board cannot award costs
Other appropriate professionals
Making the Case – Legal Counsel
•Legal opinion triggers
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Bad Faith
Discoverability
Reasonable Apprehension of Bias
Citation of Court cases
Making the Case – Rules of Procedure
•Established in 1994
•Currently under review
•Draft will be circulated prior to
implementation
•Formal notice upon approval
•Legal effect upon publication in NL
Gazette
Making the Case – Rules of Procedure
Preamble:
1. Title
2. Applicability
3. Board members preview appeals
4. Recording of Hearing
Making the Case – Rules of Procedure
Hearing
5. Introductions
6. Legal Counsel
7. Oaths
8. Facts Read
9. Option for Adjournment
Making the Case – Rules of Procedure
Hearing
10. Evidence
a) Technical Advisor
b) Appellant
c) Respondent (Council)
d) Other Parties
e) Respondent Statement of
Applicable Policies / Regulations
Making the Case – Rules of Procedure
Hearing
10. Evidence
f) Appellant's cross examination
g) Summaries
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Council
Appellant
Making the Case – Rules of Procedure
Hearing
11. Adjournment
12. Deliberations
13. Reasons for decision
14. Minutes and Attendance
15. Repeal of previous rules
Making the Case – Presenting at the Hearing
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Stick to the facts
Be prepared
Know the Legislation, Plan
Policies, Regulations
Written strategy and
documentation
Making the Case – Presenting at the Hearing
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Self reflection:
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Can this be appealed?
Was the appeal filed properly?
Was Council’s decision
appropriate?
How was Council’s decision
communicated?
Making the Case – Presenting at the Hearing
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Strategy
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Tell a story
Show compassion, but not emotion
Stay on message
Everything is backed up with
documentation
Making the Case – Presenting at the Hearing
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Written Brief Outline
1. Introduction
2. Background
3. Legislative and provincial regulatory
considerations
4. Relationship to adopted Plans and
Regulations
5. Application Process
Making the Case – Presenting at the Hearing
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Written Brief Outline
6. Committee Considerations
7. Council Considerations
8. The Decision
9. Communicating the decision
10. Enforcement
11. Response to the Appeal
Making the Case – Rebutting contrary evidence
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Rules 10(b) and 10(f)
Appellant is emotionally involved
Ignore personality conflicts
Focus on Council decision
Demonstrate how evidence is
unrelated to appeal
Stay on message
Avoid personal attacks
Making the Case – Board Decisions
•S.42(10) of URPA
“In determining an appeal, a board
may confirm, reverse or vary the decision
appealed from and may impose those
conditions that the board considers
appropriate in the circumstances and may
direct the council, regional authority or
authorized administrator to carry out its
decision or make the necessary order to
have its decision implemented.”
Making the Case – Board Decisions
•Confirmation
•Council’s decision is upheld
•No further action required by Council
Making the Case – Board Decisions
•Reverse
•Council’s decision is thrown out
•Reasons must be stated
•Matter is referred back to Council
Making the Case – Board Decisions
•Vary
•Rare type of decision
•Specific condition may be stuck
•One aspect of an order may be struck
while others are upheld
Making the Case – Board Decisions
•Confirm – Issuance of Permit
•Council can proceed as normal
situation
•Ancillary Stop Work Orders should be
rescinded
Making the Case – Board Decisions
•Reverse – Issuance of Permit
•Normally 3rd party Appeal
•Issue refund to Appellant
•Application with no decision in place
•Re-consider matter based on reasons
•Non-fatal flaw in procedure or
decision
•Subsequent decision is also subject to
appeal
Making the Case – Board Decisions
•Vary – Issuance of Permit
•Specific condition of a permit is struck
•Proceed as normal as if struck
condition was never in place
•Issue refund if ordered to do so by
Board
•Ancillary Stop Work Order must be
rescinded
Making the Case – Board Decisions
•Confirm – Refusal of Permit
•Council can proceed as normal
•Development without permit now
subject to Stop Work and Restoration
order
Making the Case – Board Decisions
•Reverse – Refusal of Permit
•Issue refund to appellant
•Application with no decision in place
•Reconsider on basis of reversal
•Non fatal flaws can be corrected
•Subsequent decision of Council
subject to further appeal
Making the Case – Board Decisions
•Vary – Refusal of Permit
•Highly unlikely outcome
•You cannot be half pregnant
Making the Case – Board Decisions
•Confirm – Order
•Council can proceed as normal
•Act on Order as provided by
legislation
Making the Case – Board Decisions
•Reverse – Order
•Issue refund to appellant
•Infinite outcomes
•Consider reasons for reversal
•Non fatal flaws can be corrected and
new order issued
•Subsequent permits or orders are
subject to appeal
Making the Case – Board Decisions
•Vary – Order
•Another unlikely possibility
•Stop work upheld but removal or
restoration vacated
•Possible if proposed use could be
considered under council regulations
Making the Case – Appeal to Court
S.46 URPA
46. (1) A decision of a board may be appealed to the court
not later than 10 days after that decision has been
received by the appellant.
(2) An appeal of a decision of a board under subsection
(1) may be made on a question of law or
jurisdiction.
(3) A board may be represented by counsel and heard
on an appeal under this section.
(4) The court shall either confirm or vacate the order of
the board and where vacated the court shall refer
the matter back to the board with the opinion of the
court as to the error in law or jurisdiction and the
board shall deal with the matter in accordance with
that opinion.
Making the Case – Appeal to Court
•Law
•Discretion
•Board order is contrary to Legislation,
Plan, or Regulations
Making the Case – Appeal to Court
•Jurisdiction
•Matter not subject to appeal
•Appeal not filed in accordance with
act
•Hearing conducted contrary to rules of
procedure
Making the Case – Appeal to Court
•Two possible outcomes
•Confirm
•Vacate
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Must be referred back to Board
•Legislation is silent on ability to
award costs
Making the Case – Summary
•Appeals are necessary to protect
democracy
•Not to be feared
•Just decisions are easily defensible
•No greater authority than Council
•Minimal costs, as compared to court
process
Making the Case – Summary
•Matters subject to appeal
•Documentation
•Legal assistance
•Rules of Procedure
•Presenting to the Board
•Implementing the decision
Making the Case – Summary
Questions or Comments?
Making the Case – Summary
Case Study
“Neighbourhood Drummer Boy”
Making the Case – Summary
Thank You
Corrie Davis, MCIP
Manager, Land Use Planning
Municipal Affairs
Tel –729-5409
Fax – 729-0477
Email – corriedavis@gov.nl.ca