Demolition of a luxury home built without a permit : How far does the court’s discretion extend?

On January 15, 2019, the Honourable Danielle Turcotte rendered a decision in Ville de Saint-Sauveur v. Bibeau (2019 QCCS 44), an action to demolish a luxury home built without a permit on the territory of the city of Saint-Sauveur.

In this case, it was demonstrated that the foundations on the defendant's lot were built on a slope of 44 %, while the city's planning by-laws stipulate that a main building cannot be constructed on a slope that exceeds 25 %.

To prevent the demolition of his home, the defendant asked the court to exercise the discretion granted under section 227 of the Act respecting land use planning and development and dismiss the city's claim. However, owing to the behaviours of the defendant and his representative, the court declined to do so.

In fact, the defendant failed to apply for a building permit before the construction work got underway. In addition, the defendant's representative, who was responsible for filing the request for the permit, suggested that the location of the main building be changed to a site other than the one previously authorized by the city in the subdivision plan.

It was only some three months after the start of project that a city inspector reviewed the home's construction and issued a stop work order. However, despite the initial order and the ones that followed, the defendant?upon the advice of his representative?chose to pursue and complete the project.

The court therefore qualified the defendant's behaviour, as well as the behaviour demonstrated by his representative, as negligent and reckless, since both parties were certainly aware that a building permit was required. As a result, the court decided not to exercise its discretion under section 227.

Furthermore, Justice Turcotte deemed that the construction clearly violated the city's by-laws. The issue relating to the slope is an environmental one and aims to prevent hillside erosion, while the issue of the aesthetic appeal of the site once the home is demolished is irrelevant to the exercise of the court's discretion.

Therefore, presenting a municipality with a fait accompli is not conducive to the exercise of the court's discretion. Indeed, in such cases, a citizen's utmost good faith is imperative.