The fight over filling the hole at the corner of Regina's Albert Street and Victoria Avenue — the site of the stalled Capital Pointe project — came before a provincial board on Wednesday afternoon.
The city maintains that the site is unsafe, with its legal counsel telling the Saskatchewan Building and Accessibility Standards Appeal Board on Wednesday that the engineer of record on the project has called for decommissioning the excavation.
The city had ordered the site to be filled in by April 3, but Westgate Properties — which owns the land — and its affiliate, Fortress Real Developments, indicated it would fight the order. Westgate Properties appealed for the stay in the order.
City counsel Christine Clifford said an engineering report from November 2017 stated that if the developer meant to resume excavation work, it had to give 30 days notice to the engineers to produce new shorings for the planned 26-floor building.
But the developer never applied for, nor has it received, a new permit from the city to continue excavating, and the engineers followed up with a May 10 report calling for the decommissioning, according to Clifford.
She noted the site has seen the prolonged exposure of adjacent foundations and road beds, while the need for new shorings continues.
"The city is prepared to remedy the unsafe conditions," she said, adding the expectation is that it will take 17 weeks for the city to do everything needed to fill the hole.
If the appeal board sides with the developer in granting a stay, Clifford said the road beds and the foundations of adjacent buildings would continue to be exposed, and could incur frost damage over the next winter.
She said the site could also see soil movement that would compromise the integrity of gas lines, as she said has happened in the past.
Developers ready to continue: lawyer
Sahil Shoor, legal counsel for Westgate Properties, said the developers had put $14 million into the work, with much of the work stemming from "previous issues" at the site.
He argued that if the city's order to fill the hole was granted, it would cause "irreparable harm and prejudice" to Westgate Properties.
"It is going to take such a long time for the city to backfill this hole," Shoor said, questioning why there was now a rush to do so.
Clifford responded that the city has never taken the position that there was an immediate danger, but that it was more concerned about the fact that the work and site itself had been abandoned, and about the risk of prolonged unsafe conditions.
"We would have acted immediately if it had been an immediate danger," she said.
Appeal board discusses in camera
Shoor asked that all submissions made by Clifford related to gas leaks, gas lines or soil conditions be disregarded.
"What Ms. Clifford has done is given evidence to this appeal board, rather than making submissions," he said.
Shoor said that the engineer of record had completed a review of the site in February 2018, with periodic two-week testing to ensure the shoring was stable and that the site was still safe.
He and his fellow legal counsel said they believed Westgate Properties was already in discussion with its contractor and structural engineers, even as submissions were ongoing, in order to continue with the project.
The appeal board indicated it would discuss the application in private, and would advise both parties once it had made its decision.
The Capital Pointe condo building that was supposed to stand at one of the city's busiest intersections has been at a standstill for years.
Plans for the building, at the site of the former Plains Hotel, began in 2010. The new building was originally expected to be completed by June 2015.