Judge tells city to vote again

Dave Bartlett
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Developer wins right to have proposal re-examined

A judge has ruled St. John’s city council should have waited for all the information to be in about a development in Kilbride before rejecting the proposal.

Last week, Justice Alphonsus Faour of the Supreme Court of Newfoundland and Labrador delivered an oral decision in the case between the city and Seanic Canada Inc.

A written version was not available as of Friday morning.

Last fall, Seanic proposed to build a three-storey, 69-room seniors’ assisted living complex be-tween Old Petty Harbour Road, Dorsey’s Lane and Carondale Drive in Kilbride.

Many who live nearby raised a number of concerns over the development, especially how traffic would impact the area.

When the proposal came to city council last November, it voted 7-3 against. However, the three councillors who were in favour of the plan asked to defer the vote until another traffic study could be done in the area. That deferral was also voted down.

The courts can be asked to review decisions of council, or other public bodies, to make sure they fall within the rule of law.

So in February of this year, Seanic went to court asking it to overturn council’s decision.

According to lawyer Michael Crosbie, who represented Seanic, Faour quashed council’s decision to defer, so city councillors will have to vote on the proposal again, once the new traffic study is completed. The judge also decided that Seanic’s court costs should be paid by the city.

The company will now be able to gather more information about traffic in the area, including the intersection at Old Petty Harbour and Bay Bulls roads.

Crosbie said if the company was allowed to do that in the first place, it may have been able to suggest changes to its plan to address residents’ concerns.

He said evidence presented in court stated council normally grants deferrals of votes when all the information isn’t available.

“For some reason, in this situation, council didn’t speak to the why (it was turning down deferral) and that was a problem for the judge,” said Crosbie.

“The trouble in law with that is, it would be unfair for an administrative body to make a decision without all of the possible information,” he said. “It’s not a fair hearing if the party is denied a chance to present everything it thinks could help (its case).”

However, Crosbie also argued that council didn’t give planning based reasons for voting down the proposal as, at the time, city staff recommended the project be approved.

Faour disagreed with that argument, according to Crosbie, saying that the debate on the development in the council chamber was sufficient.

“The judge agreed that a planning discretion has to be exercised for planning reasons,” said Crosbie. “(But) he wasn’t prepared to say comments made by councillors ... didn’t give sufficient planning reasons for turning this down.”

“Had there not been an error about deferral, then (the judge)  would have seemingly accepted council’s vote as acceptable,” added Crosbie.

But he said he still feels council should provide reasons based on planning for turning down applications, not just simply because they are unpopular.

The city’s lawyer Linda Bishop, told The Telegram she wouldn’t comment until she meets with city council to review the judge’s decision.

It’s possible the city could appeal, but Crosbie said Seanic is happy with the outcome.

dbartlett@thetelegram.com

Organizations: Supreme Court, Seanic Canada, The Telegram

Geographic location: Kilbride, Newfoundland and Labrador, Old Petty Harbour Road Petty Harbour Bay Bulls

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