Order LA15-05 - Docket LA14004 - Planning Appeal - Phillip O'Halloran v. Community of Miltonvale Park (June 16, 2015)

[11] The Appellants replied to the jurisdictional issues, agreeing to keep the focus limited to the placing of fill, stating, "That's why we are here".

[12] The Commission orally determined that the scope of appeals would be limited to the applications for development permits to place fill on the Appellants' property.

[13] With respect to the issue of subsection 28(6) of the Planning Act, the Commission orally referred to and quoted at some length from Commission Order LA99-06 George R. Schurman v. Minister of Community Services and Attorney General. In the present appeal, the Commission applied the test formulated by Chair Cheverie [as he then was] and determined that the failure of the Appellants to comply with the requirements of subsection 28(6) of the Planning Act did not prejudice or compromise the Respondent's position on this appeal.

[14] Accordingly, the Commission orally determined near the commencement of the hearing that it had the jurisdiction to hear both of the present appeals.

[20] The Respondent called Orville Curtis as a witness. Mr. Curtis lives across the road from the Appellants' property. He testified that the prevailing winds blow dust from the Appellants' property onto his own property. He stated that he has experienced dust and noise from the Appellants' property for 20 to 25 years. Mr. Curtis testified that the dust aggravates his health. He stated he has seen a water truck on the site once. He stated that any dry day dust is present. He described the noise as a "crash-bang", "three or four slams per truck" and on some days as many as "75 to 80 trucks". He stated that the dust gets on the clothesline, windowsills and vinyl siding of his home.

[21] The Respondent requested that the Commission deny the appeals thus confirming the Respondent's decisions not to issue development permits for the placement of fill on the Appellants' property.

[23] Judy MacDonald testified that she resided in the Community of Miltonvale Park from 1954 to 1982. She currently passes by the property several times per week. She expressed concerns over dust and noise, including the sound of banging truck tailgates. She stated that construction inconvenience is usually short-lived; however, the placing of fill on the Appellants' property has been ongoing for years.

[24] 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 follow.

[25] Subsection 28(1.1) sets out the kinds of municipal decisions that may be appealed to the Commission:

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 bylaw for

(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.

[26] 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.

[27] 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 other material;

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.

[28] Section 4.15(8) of the Bylaw reads:

4.15 DEVELOPMENT RESTRICTIONS

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;

[29] 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.

[30] 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), [1997] 2 P.E.I.R. 40 (PEISCAD), Mitchell, J.A. states for the Court at page 7:

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.

[31] 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 by the Planning Act, then the Commission must proceed to review the evidence before it to determine whether or not the application should succeed.

[32] 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.

[33] The Commission considered a two-part test, which serves as a guideline in determining appeals under the Planning Act:

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.

[34] In Charlottetown (City) v. Island Reg. & Appeals Com. 2013 PECA 10, Chief Justice Jenkins of the Court of Appeal stated:

[32] 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.

[35] 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.

[36] 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.

[37] In Re East Royalty; Affleck v. East Royalty, Village Commissioners of [1983] P.E.I.J. No. 62, Justice MacDonald of the Supreme Court of Prince Edward Island (Appeals Division) noted:

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 legislative language.

[38] In Ottawa (City) v. Boyd Builders Ltd. [1965] S.C.R. 408 Justice Spence of the Supreme Court of Canada stated:

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.

[39] In Order LA11-01, Biovectra Inc. v. City of Charlottetown, the Commission stated at paragraph 61:

[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.

[40] 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.

[41] 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;".

[42] 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.

[43] An analysis of the Respondent's process and procedure is therefore appropriate to examine how the Respondent considered its Bylaw and exercised its discretion.

[44] 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 June 26, 2014

iv. Planning Board

a. Development Applications and Permits

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, 2014

iv. Planning Board

a. Development Applications and Permits

Motion 2014:100 - 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. Motion carried.

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.

[45] Neither of the above minutes provides much detail, however both have adopted the recommendation of Planning Board.

[46] The June 17, 2014 minutes of Planning Board note the following:

The October 16, 2014 minutes of Planning Board note the following:

4. Application #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 appeal). Comments were 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.

Concern was 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. Land online was consulted and concerns remain regarding the water flow.

The bylaw 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 run-off damage.

No significant 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 required. The provincial 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. Motion carried.

[47] The Respondent's Council accepted the recommendations of its Planning Board for both applications.

[48] While "detrimental" is not defined in the Respondent's Bylaw, section 2.35 of the Respondent's Bylaw defines "detrimental impact":

2.35 "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 regard to

(i) property value;

(ii) competition with existing businesses;

(iii) landscapes; or

(iv) development approved pursuant to subsection 9 (1) of the Environmental Protection Act.

[49] The above cited definition appears to mirror the definition of detrimental impact contained in clause 1.(f.3) of the Planning Act Subdivision and Development Regulations.

[50] Black's Law Dictionary, 9th edition, defines "detriment":

Detriment.(15c) 1. Any loss or harm suffered by a person or property.

[51] 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.

[23] 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:

When the 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.

In reaching 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 properties.

The Commission 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 properties).

The Commission 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 Regulations.

[24] 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 subsection 3(2).

[25] 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.

[52] 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 in the 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.

[53] 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.

[54] 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:

[20] 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.

[55] 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.

[56] In Doman Industries Ltd. v. North Cowichan (District), [1980] 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 zoning by-law.

[57] 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 municipality. 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., [1965] S.C.R. 408, 50 D.L.R. (2d) 704.

[58] 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.

[59] 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 4.32(i).

[60] In MacArthur, Justice Cheverie considered section 4.73 of the then City of Charlottetown Zoning and Development Bylaw:

4.73 OBNOXIOUS, HAZARDOUS OR UNHARMONIOUS DEVELOPMENT

Any 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.

...

Discussion

[19]   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 applicable.

[20]      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:

3.131    "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.

[21]      The Supreme Court of Canada in Verdun had the following to say concerning the bylaw in that case (p. 7 Quicklaw version):

The mere 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.

[22] 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. For 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 for that. However, with 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 concerns. 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 only...be regulated.". 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 building.

[23] In the Verdun case, Fauteux J. went on to cite, with approval, the following:

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 Gagné 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.

[24] Fauteux J. concludes in Verdun (at p. 8 of the Quicklaw version):

The permission 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. It 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 protected.

[25] 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 find.

[26] 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.

[61] 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 arbitrary.

[62] 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).

[63] Accordingly, 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.

[64] 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 planning principles.

[65] 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.