Executive Summary: Key Legal and Evidentiary Issues

• Gary Churchill appealed the Eastern Newfoundland Regional Appeal Board's decision upholding the Town of Witless Bay's rescission of a development permit for a septic system at his oceanfront property.

• The Rescission Motion was premised on the flawed conclusion that the Original Motion was merely an expression of support for consultation with Service NL, not a development permit approval.

• Justice MacDonald's prior ruling in Churchill v. Eastern Newfoundland Regional Appeal Board, 2024 NLSC 66, had already legally established that the Original Motion constituted a development permit approval under the Urban and Rural Planning Act, 2000.

• Procedural fairness concerns were raised by Churchill regarding the Town's introduction of additional materials at the Appeal Board hearing that were not disclosed in advance.

• The standard of review applied was correctness, as the statutory appeal under the Act is limited to questions of law or jurisdiction, affording no deference to the decision-maker.

• The Court found the Appeal Board's decision contained an error of law, revoked it in part, and remitted the matter back for redetermination in accordance with the Court's opinion.

Background and the property at issue

Gary Churchill owns oceanfront property at 0 Mullowney's Lane in the Town of Witless Bay, Newfoundland and Labrador. The property was built with proper Town permits and, while it may have the outward appearance of a cabin, it does not contain kitchen or bathroom facilities. On the lot, there is also a 34m² recreational building referred to by the parties as either a gazebo or a leisure property.

Churchill's development application and the original approval

On August 8, 2021, Churchill submitted a development application to the Town seeking approval to consult with Service NL to design and develop an environmental septic system for appropriate waste disposal and environmental stewardship. At a public meeting on August 17, 2021, the Town's Council passed Motion No. 2021-267 — the "Original Motion" — which moved to support the application and refer it back to Service NL for final system approval. On August 31, 2021, Patrick Curran, the Town's Chief Administrative Officer, issued a letter on Town letterhead confirming the Council's approval for the installation of a septic system at the property, conditional on Service NL's approval of the septic system design. The Town later contended that Curran had ended his role as CAO on August 13, 2021, before the letter was sent, though Churchill maintained Curran was still acting in that capacity since no replacement had been hired.

Service NL approval and the Town's rescission

On October 14, 2021, Service NL approved the construction and installation of a sewage system and water supply to service a premises with three bedrooms at the property. However, on November 9, 2021, the Town's Council passed Rescission Motion No. 2021-372, rescinding the Original Motion. The Town's contemporaneous minutes indicated that Council viewed the Original Motion as having been made in error, reasoning that Churchill's application was merely to "consult" with Service NL and that applicants do not need the Town's approval to do so. The Town further stated that it requires a development application to be completed in full before approving development applications and forwarding them to Service NL.

The first appeal and Justice MacDonald's decision

Churchill appealed the Rescission Motion to the Eastern Newfoundland Regional Appeal Board, which initially declined jurisdiction, stating the matter did not involve an application to undertake development or a decision to allow or approve development. Churchill then appealed to the Supreme Court of Newfoundland and Labrador. In Churchill v. Eastern Newfoundland Regional Appeal Board, 2024 NLSC 66, dated April 12, 2024, Justice MacDonald determined that the Original Motion did concern a "development" as contemplated by section 2(g) of the Urban and Rural Planning Act, 2000, and that it effectively granted Churchill a development permit. The matter was referred back to the Appeal Board.

The Appeal Board's second decision

A new hearing was held before an adjudicator in September 2024, resulting in the Decision dated October 11, 2024, which confirmed the Rescission Motion. The adjudicator found that under the Town of Witless Bay Development Regulations, if a permit was issued pursuant to an "error" or on "the basis of incorrect information," the Town had the discretion to revoke it. The adjudicator reasoned that the Council viewed the Original Motion as having been unnecessary and premature since it did not follow Council's normal process for approval of a septic system. While the adjudicator acknowledged Justice MacDonald's ruling, the adjudicator distinguished it by stating that Justice MacDonald's findings related to the legal consequences of the Town's actions in relation to the Original Motion as opposed to why those actions were taken and on what basis.

The applicable legal framework

The case was governed by the Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8, and the Town of Witless Bay Development Regulations. Section 46 of the Act permits an appeal in these circumstances, but only on a question of law or jurisdiction, and the Court's remedial powers are limited to confirming or revoking the decision. The standard of review was correctness, assessed under the principles outlined in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, with no deference afforded to the decision-maker.

The Court's analysis and finding of an error of law

Justice Conway found that the Rescission Motion was fundamentally premised on the conclusion that the Original Motion was merely a motion of support for Churchill to apply to Service NL, and not a motion of the Town approving a development permit. This premise was legally incorrect in light of Justice MacDonald's prior determination that the Original Motion did constitute a development permit approval. The Court emphasized that the Town was not claiming it mistakenly thought it was only showing support; rather, the Rescission Motion presumed that the Original Motion was not an application for a development permit — a position that was legally incorrect based upon the subsequent decision of Justice MacDonald. The Town itself did not dispute in its supplemental submissions filed on May 14, 2025, that the Original Motion constituted a development approval, yet the basis for its Rescission Motion contradicted this very point. Justice Conway therefore concluded that the Appeal Board's Decision contained an error of law in allowing the Town to maintain that the Original Motion was not a motion that approved a development permit.

Ruling and outcome

The appeal was allowed in favour of Gary Churchill, who appeared on his own behalf throughout. Justice Conway revoked the Appeal Board's Decision in part — specifically its finding that the Rescission Motion was a valid exercise of the Town's discretion to revoke the Original Motion based upon an error — and remitted the matter back to the Eastern Newfoundland Regional Appeal Board to be redecided in accordance with the opinion of the Court. The Court did not find it necessary to decide Churchill's procedural fairness argument given the outcome. The Town of Witless Bay was ordered to pay Churchill fixed costs in the amount of $1,100.00, calculated on a Column 2 basis under the Rules, consistent with the costs awarded by Justice MacDonald in the first appeal.