Answering Your Questions on the Outer Battery Issue

Over the past week, we have received many questions on the Outer Battery light issue. This blog post answers your questions and explains Council’s position.

Section 377 of the City of St. John’s Act says that Council has the power to address lighting issues. Why hasn’t Council had the lights removed? 

Here’s what Section 377 says: 

“Where, in the opinion of the city medical officer or the council, a building or a trade or occupation, matter or thing, in or about a building or the lot on which it is situated, or the plumbing, sewage, drainage, light or ventilation of a building is in a condition that is dangerous or detrimental to life or health, he or she or it may declare that the building, to the extent he or she or it may specify, is a public nuisance, and may order the building to be removed, abated, suspended, altered or otherwise improved or purified as the order shall specify.” 

Section 377 has not been used in the City of St. John’s in the modern era. It requires a determination that a building or part thereof is a danger to health. The City does not have jurisdiction over public health, nor does it have staff who are experts in public health who could inform Council. 

When you read this section together with the Act as whole, it clearly was not intended to deal with excessive exterior lighting. The reference to lighting speaks to a time when lack of light and ventilation were issues related to public health. The absence of sufficient light and ventilation were thought to increase the spread of disease in neighbourhoods and throughout the City. 

What about section 316? 

Section 316 defines public nuisance as something that is a contravention of the Act or of an order, rule, regulation or by-law made by Council under the Act. There is no current order, rule, regulation or by-law that prohibits exterior lighting.

So, what about regulating light coming from businesses, signs or ballfields. Why can you regulate those and not the light from a private property? How can you have a noise by-law and a new fireworks by-law and not address this situation? 

The reason we can have those types of rules and regulations is because the City of St. John’s Act allows for them. For example, Section 162 of the City of St. John’s Act says Council may:

(d)  license and regulate or prohibit the posting of bills or placards and the erection or display of advertisements; 

(e)  make regulations for the placing of awnings, signs and showboards; and to abate as nuisances awnings, signs, or showboards placed so as to contravene the regulations; 

(i)  prohibit or regulate or prevent the ringing of bells and chimes, blowing of horns, beating of drums and other noises calculated to disturb or be an annoyance to persons;

(j)  prohibit or regulate or prevent the firing of guns or other firearms and the firing off of fireballs, squibs, crackers or fireworks and for preventing charivaries and other similar disturbances of the peace;

Ballfields are usually owned by the City, and as the owner, we can control the lights.

So, why not just create a by-law to address this? Why is Council doing nothing about this issue? 

It is false and misleading to say that Council and staff have done nothing about this issue. The list of actions taken is lengthy. 

• Inspection staff have responded to and investigated over 26 complaints for this area.  The complaints ranged from working without permits, general property conditions, possible hazards, illegal signage, excessive noise and nuisance lighting. While some of the files are still open and undergoing action, the majority are closed as the matters were either resolved or unactionable. In many cases, the work ongoing has all the appropriate permits in place.
• There have been concerns of property ownership. Staff mapped current land boundaries to gain a better understanding of what is private vs. City property.
• Parking Enforcement Officers responded to and investigated 111 complaints for vehicles illegally parked.  Many of these complaints were related to parking of specific vehicles in the parking lot area while others were related to abandoned vehicles, parking in No Parking Areas, blocking access and blocking fire hydrants. Although all complaints were responded to in most cases there were no violations observed by the responding officers. an estimated 10 and 15 tickets were issued.
• Some of the more contentious parking matters revolve around parking in the community parking lot owned by the City. Vehicles parked there for extended periods do not violate the City’s bylaws. 
• Staff have worked with the residents of the Outer Battery to ease some parking restrictions, allowing for some additional spaces provided access can be gained by emergency vehicles. 
• Staff and members of Council have responded to numerous emails and phone calls on this issue. An in-person meeting with residents and the MHA was held, and Council offered to bring in a mediator to help the residents work through this issue, but the request was declined.

Finally, Mayor Breen has made a formal request for the Province to see if there is a violation of the Environmental Protection Act.  Mayor Breen understands Minister Davis is looking into it, but we haven’t heard anything on this to date. 

Why not just copy one of the examples from other municipalities that would regulate lighting and fix this issue? 

Over the past week, we’ve seen lots of examples shared on social media of regulations and by-laws from other municipalities. People have asked why we can’t adopt or use one of these. 

The reason we can’t currently do that is that the City of St. John’s Act is prescriptive, meaning that in order for the City to exercise a power, it has to be listed in the Act. 

Council want the City of St. John’s Act updated to enabling legislation, like other Canadian municipalities. The modern legislation that we have requested would give us broad powers to deal with various municipal issues as they arise. 

For example, the Halifax Charter states:

The purpose of this Act is to (a) give broad authority to the Council, including broad authority to pass by-laws, and respect its right to govern the Municipality in whatever ways the Council considers appropriate within the jurisdiction given to it; (b) enhance the ability of the Council to respond to present and future issues in the Municipality; and (c) recognize the purposes of the Municipality set out in Section 7A. 

Purposes of Municipality 7A: The purposes of the Municipality are to (a) provide good government; (b) provide services, facilities and other things that, in the opinion of the Council, are necessary or desirable for all or part of the Municipality; and (c) develop and maintain safe and viable communities. 2019, c. 19

When you read the purpose of the Halifax Act you can contrast that with the City of St. John’s Act, which does not have those broad powers. 

If the City enacted a lighting by-law, would this individual be forced to take down his lights?

Unfortunately, no. The City cannot use a by-law retroactively unless the City Act says so, and it does not give us that power.

While this might seem unfair we must consider what this would mean for everyone. For example, when the building code is changed the City does not go back and force everyone to change their properties to comply – generally, the change will apply to new construction.

“A statute has retroactive effect when it is deemed to operate in the past… Retroactive operation is the exception rather than the rule. The need for predictability in the legal system is incompatible with the application of provisions that precede their enactment.” 

The Interpretation of Legislation in Canada – Pierre a Cote

Why can’t Council simply send staff to remove the lighting?

The City is a creation of statute. We can only do what the Act says. If the City acts against an individual or company and that action is not allowed by the legislation, then we are acting illegally. 

There are real consequences to the City acting unlawfully. Citizens would not support governments acting outside their jurisdiction as it would put everyone at risk. There are also potential financial consequences. If there are damages suffered in relation to our action the City would be legally responsible for the losses which could mean taxpayer money being spent to provide compensation to those persons wrongfully targeted by an invalid regulation.

Entering onto the private property of a resident and removing a fixture is a serious action that should not be taken lightly. Before the City would even consider taking such action, it would need to have the proper legislative authority to do so. There are no municipal regulations for exterior lighting at this time. There is no legal basis to take such action. Courts have made it clear that to enter onto a residential property, the City must follow due process and must do so for a lawful purpose as set out in the City Act. There is no lawful basis under the City Act to take such action.

Why not fine the owner for mischief, harassment or harming the environment?

The City cannot legislate in areas that are of federal or provincial jurisdiction. We are the lowest level of government. 

This individual has been charged with Mischief under the Criminal Code of Canada by the RNC and is now being prosecuted by the Provincial Crown before the Provincial Court of Newfoundland and Labrador. Because of this, we also have to be careful with our actions, because to interfere with a prosecution could be grounds for the offence of obstruction of justice. 

The common law may also apply to this situation – particularly given the nature of the allegations of other issues such as parking noise, harassment, bullying, and so on. The residents may have a private action under the tort of nuisance: 

“A private nuisance is the unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment of or use of another individual’s property, without an actual physical invasion to the land”

Ball v. Hanrahan 2014 NLPC 0113C00508

Staff and Council have advised the residents that they should seek legal advice to see what their options are to address this issue. 

It has been said that this individual is litigious. Are you afraid of getting sued and that’s why you won’t take down the lights?

Absolutely not. The City would take action if it had the legislative authority to do so.

It doesn’t make sense why Council would vote down the motion to ask the Province to amend the City Act. Why not do this, and then Council would be able to have a lighting by-law?

Right now, Council does not believe that this is a City-wide issue that requires legislation to address:

• Most of the complaints we get about lighting come from provincial government buildings (which we cannot regulate) our own properties (which we do control) and signs, which we have by-laws to address.
• There are ways for neighbours to address issues through other levels of government and other processes, like civil court.
• Picking away, line by line through the antiquated City Act, doesn’t address the overall problem of prescriptive legislation, which doesn’t enable the City to move more nimbly to address problems.
• Finally, it won’t give us the power to remove already installed lights and fix this problem for the Outer Battery residents.