Adjudicator backs council’s decision to deny quarry permit for Farrell’s Excavating

By Craig Westcott

Farrell’s Excavating has lost its appeal to make CBS council reconsider its refusal of a permit for a new quarry on the southern end of Red Bridge Road in Kelligrews.

Adjudicator Chris Forbes tendered his decision on Farrell’s appeal on October 31, giving the company 10 days to challenge it at the Supreme Court.

CBS council rejected the company’s application for a new quarry on December 17 last year after receiving letters and a petition from residents opposed to it. The residents’ concerns included the likelihood of increased traffic on Red Bridge Road, pedestrian safety, dust and noise, road damage, and the proximity of the street to Admiral’s Academy and St. Edward’s Junior High. Farrell’s would have to use Red Bridge Road to access and exit the proposed quarry.

The Town rejected Farrell’s application citing a section of its development regulations which prohibits quarries within one kilometre of existing homes. Farrell’s was proposing to excavate and mine bedrock on a large parcel of Crown Land located within 875 metres of Red Bridge Road and a similar distance from the closest home on the street.

At the Appeal hearing, an officer of the company, Kyle Thibeault, confirmed the company intended to operate the quarry for more than 10 years and planned to drill and blast the bedrock to excavate sand and gravel. Thibeault noted that after Farrell’s application was rejected, council approved a permit for Platinum Construction to operate in an existing quarry in the same area.

Farrell’s Excavating owner, Billy Farrell, went further, pointing out that Platinum is owned by Deputy Mayor Andrea Gosse’s husband, and alleged she had discussed Farrell’s application with other councillors.

However, on close examination of that allegation, the adjudicator could find no evidence to support Farrell’s claim. In fact, it appeared to be just the opposite, with Gosse declaring a conflict of interest and refraining from any discussion of Farrell’s application whenever it came before council.

Farrell also claimed Platinum’s application was sent out for referral to government departments for comment within less than a month of its filing, whereas it took eight months for that to happen in his case. However, under cross-examination, Farrell admitted it was the provincial government and not the town council that took longer to handle his application.

As to why Platinum received a permit and Farrell’s didn’t, the Town’s Director of Planning, Corrie Davis, told the adjudicator Platinum’s application pertained to a quarry that had been operating for many years, and was essentially a change of ownership. Farrell’s application, on the other hand, was for a new quarry.
After examining the evidence, the legislation, and development regulations, Forbes ruled council was within its rights to refuse Farrell’s application.

“The argument that like cases should be treated alike ignore, in this particular case, the impact of a quarry development in a general area where another quarry or quarries already exist,” said Forbes, “It is not offside the Development Regulations for council to consider the impact to an area of adding new quarries where other quarries already exist.”

Councils must exercise their discretion based on the facts before it within the context of each specific application, “and cannot simply approve or refuse applications based on what it has done before or what it might do after,” Forbes added. “Each application must be considered on its own merits.”

Forbes said council was within its authority when it deemed Farrell’s application was not in the public interest, particularly in light of the public opposition to the application.

“I find the exercise by the Authority (council) of its discretion to refuse the Appellant’s development application was reasonable and within its discretionary powers,” Forbes ruled.