Marcotte, Mainville, Moore
Appeal from a judgment of the Superior Court ordering the demolition of a structure pursuant to s. 227 of the Act respecting land use planning and development (CQLR, c. A-19.1). Dismissed.
In 2013, the respondent city approved a subdivision plan filed by a real estate promoter in which the appellant’s planned residence was situated on a building plateau with a natural slope of 25%. In November 2015, he was ordered to stop construction because he did not have a construction permit. The appellant refused to comply. On December 23, 2015, the respondent learned that the plateau where the structure was located was not the one described in the subdivision plan and did not respect the authorized maximum percentage. On January 15, 2019, the trial judge ordered the demolition of the residence.
Section 9.5 of the regional county municipality of the Pays-d’en-Haut’s land use and development plan provides that no construction permit may be issued when the average natural slope of the building part exceeds 30%. The respondent incorporated that standard in its by-laws by combining two sections, that is, s. 34 of subdivision by-law 223-2008, which provides that any building lot must include a building part that has an average natural slope lower than or equal to 25%, and s. 18 of by-law 227-2008 on the conditions for issuing a construction permit, which provides that no construction permit may be issued when that slope exceeds 25%.
In this case, the standard set forth in s. 34 of the subdivision by-law was respected because the structure proposed in 2013 was located on a building part with a slope of 24%. However, the appellant decided to move his construction project to a plateau with a slope exceeding 25%. As a result, he was unable to obtain a construction permit pursuant to s. 18 of the permit by-law. That by-law is made under s. 116 of the Act respecting land use planning and development, which allows the respondent, pursuant to its jurisdiction with respect to subdivision, to determine the conditions for the issue of such a permit. In the circumstances, the Court finds that the appellant’s construction is incompatible with s. 18 of the permit by-law, and that incompatibility allows the respondent to request the demolition of the construction pursuant to s. 227 of the Act respecting land use planning and development.
The order sought in this case is not moot, and it is difficult to find the non-conformity minor, particularly since it includes both the maximum percentage of the average natural slope of the building part, which entails a total prohibition of the project, and the maximum percentage of the average natural slope of the landsite, which would have required the municipal council’s prior authorization. Furthermore, given that the facts are far from exceptional or rare, the judge’s decision not to use her discretionary power to refuse the demolition order was well founded. In some cases, the interests of justice require that demolition be set aside on the ground that it is disproportionate to the alleged breach and offends the sense of fairness. These same interests of justice may also at times justify demolition, without which a citizen could achieve his or her ends by adopting the fait accompli strategy, which the judge found in this case.
Text of the decision: Http://citoyens.soquij.qc.ca