Fence dispute back to Square 1

Andrew
Andrew Robinson
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Supreme Court takes issue with appeal board’s failure to render decision

A regional appeal board has been ordered to take another look at a municipal dispute arising from the construction of a fence more than a decade ago.

In a decision handed down last Friday, Supreme Court of Newfoundland and Labrador Justice Deborah Paquette took issue with how the Eastern Newfoundland Regional Appeal Board struck down the Town of Carbonear’s removal order for a fence surrounding the back yard of a home.

The board elected to vacate the removal order, but left it up to the municipality to find out whether the Limitations Act actually applied to this case. If it did not, the town could issue a new removal order, the board said.

The fence was built in 2002. Homeowner Marie Aisthorpe — by then living in Dartmouth, N.S. — received a removal order for the fence 8 1/2 years later and subsequently filed an appeal.

The town said in its removal order that Aisthorpe built the fence without a permit.

Aisthorpe admitted this was the case during the appeal board hearing, but claimed permission from the town to build an extension and change the street address for the corner property from Russell Street to Church Street left her in the clear to replace the fence.

Paquette noted that under the Urban and Rural Planning Act (URPA), the board has the power to render decisions. In this case, Paquette felt it failed to do that.

“If the board was unsure of the legal effect of the Limitations Act, it was empowered under URPA to have the parties make representations to aid the board to ‘reach a decision’ and ‘inform itself of the subject matter of the appeal in the manner it considers necessary to reach a decision,’” she wrote in the court’s decision, quoting sections of the URPA for emphasis.

By vacating the removal order before ruling on whether the Limitations Act applied to this case, the board erred in both law and jurisdiction, Paquette said. The judge went on to rule that the Limitations Act does not apply in this case.

The board must now hold a new hearing on the matter to determine whether or not Aisthorpe’s fence contravenes town regulations and to consider the validity of the removal order.

arobinson@thetelegram.com

Twitter: @TeleAndrew

Organizations: Supreme Court, Eastern Newfoundland Regional Appeal Board

Geographic location: Carbonear, Dartmouth, Russell Street Church Street

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